Griffin v. Griffin

• Decision Date: 23 November 1915
• Parties: GRIFFIN v. GRIFFIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 218

110 N.E. 296

GRIFFIN

v.GRIFFIN.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 23, 1915.

Appeal from Superior Court, Essex County; J. F. Quinn, Judge.

Bill in equity by Frank O. Griffin against Edward S. Griffin. From a decree dismissing the bill, plaintiff appeals. Order dismissing appeal affirmed.

Jos. G. Wright, of Boston, for appellant.

Edgar S. Taft, of Gloucester, for respondent.

RUGG, J.

This is a suit in equity. Final decree dismissing the bill was entered in the superior court on March 17, 1915. The plaintiff appealed to the full bench of this court on March 29, 1915, being within the twenty days now allowed by law. Twenty-three days later, on April 21, 1915, a motion by the defendant that this appeal be dismissed because not seasonably entered, was granted. No finding of facts or report of material evidence was filed by the judge of the superior court. The question is, therefore, whether as matter of law his action is dismissing the appeal was warranted. The governing statute is St. 1911, c. 284, which provides that:

‘An appeal from a final decree of the superior court shall forthwith be entered in the Supreme Judicial Court.’

The word ‘forthwith’ first appeared in the law relating to the entry of appeals in equity in R. L. c. 159, § 19. It was not in Pub. St. c. 151, § 13, or St. 1883, c. 223, § 2. It was held in Burlingame v. Bartlett, 161 Mass. 593, 37 N. E. 748, decided before the enactment of the revised laws, that the time of entry of such appeals in the Supreme Judicial Court was controlled by Pub. St. c. 153, § 15 (now R. L. c. 173, § 117), regulating actions at law which required the entry to be made ‘as soon as may be after such question of law is reserved.’ Doubtless the insertion of the word ‘forthwith’ in R. L. c. 159, § 19, was not intended to change the law as previously declared, but merely to make plain by express terms the similarity of the provision as to the entry of appeals in equity and appeals and exceptions at law. The bringing of cases directly from the land court to the Supreme Judicial Court is governed by the same procedure. R. L. c. 128, § 13, as amended by St. 1910, c. 560, § 1. As to appeals from the appellate division of the municipal court of the city of Boston, see St. 1912, c. 649, § 9. ‘Forthwith’ and ‘as soon as may be’ in substance mean the same. Everson v. General Accident, etc., Assur. Corp. 202 Mass. 169, 174, 88 N. E. 658. As applied to the subject-matter, they signify that due diligence shall be used to enter the case in the full court with reasonable promptness.

It was said in Priest v. Groton, 103 Mass. 530, in effect, that it was common practice for the name of a case in which exceptions or appeal was pending, to be transmitted to the clerk of the full court and the entry fee to be paid later, and the copies and other papers entered at a subsequent time. That practice was changed many years ago. Now and for years last past it has been the practice not to enter a case on the calendar of the full court sitting for the Commonwealth until the entry fee has been paid, the papers printed and the copies made in cases where copies must be transmitted, so that all essential papers may be filed at one time. It also was pointed out in that opinion that the requirement that the entry be made ‘as soon as may be’ after the case was ripe for entry, being the equivalent of a reasonable time, was substituted by St. 1864, c. 111, for the earlier definite period of 20 days found in Gen. St. c. 115, § 12. In Bentley v. Ward, 116 Mass. 333, it was held that, in any case where no special circumstances are shown, exceptions not entered in this court within a month after the final adjournment of the term at which they were allowed, could not be deemed to be entered ‘as soon as may be.’

The general tendency of recent statutes and rules of court has been to hasten so far as may be reasonable the allowance of exceptions and thus to prevent the great delays which sometimes occurred in the presentation of cases to this court by appeal or exception from the superior court. Frank, Petr., 213 Mass. 194, 99 N. E. 968. That is a salutary tendency. The words ‘forthwith’ and ‘as soon as may be’ must be interpreted in the light of this tendency. When the Legislature has used such words, they have gone as far as language can to indicate that all steps for the entry must be taken without any delay or the lapse of any greater period of time than is necessary. The same word is...