Henry L. Sawyer Co. v. Boyajian

• Decision Date: 05 June 1939
• Citation: 21 N.E.2d 536,303 Mass. 311
• Parties: HENRY L. SAWYER CO. v. BOYAJIAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 311

21 N.E.2d 536

HENRY L. SAWYER CO.

v.BOYAJIAN.

Supreme Judicial Court of Massachusetts, Worcester.

June 5, 1939.

Action of contract on a promissory note by the Henry L. Sawyer Company against S. K. Boyajian, wherein there was a finding for the plaintiff. From orders of the Appellate Division made on motion to stay, abate, or discontinue proceedings and motion to impose double costs on defendant for delay, defendant appeals.

Order allowing motion for double costs reversed and dismissed, and appeal from order denying motion to stay, abate or discontinue proceedings dismissed.Appeal from Central District Court of Worcester; C. L. Hibbard, judge.

S. K. Boyajian, of Providence, R. I., for appellant.

Abraham Brooks, of Boston, for appellee.

FIELD, Chief Justice.

This action of contract on a promissory note was brought in a district court, where there was a finding for the plaintiff. There were several reports to the Appellate Division, all of which were dismissed. An appeal to this court was taken on the matters involved in two of the reports, and the order dismissing the reports was affirmed. Mass., 5 N.E.2d 348. Thereafter the defendant petitioned the Appellate Division to establish a report relating to a denial by the District Court of a motion by the defendant for a new trial based on newly discovered evidence. The petition was denied. The defendant filed an appeal in this court. This court, assuming without deciding that such an appeal lies, affirmed the order of the Appellate Division denying the petition. Mass., 10 N.E.2d 471. The defendant then made a motion-supported by his affidavit to the truth of the facts therein stated-to ‘stay, abate, or discontinue proceedings' in the case, assigning as ground therefor ‘that the same was brought (as appears on the record) and prosecuted by a corporation operating as a collection agency which has been forbidden by law and by the terms of an Order of Judgment from bringing or prosecuting such actions.’ The motion was denied by the Appellate Division. A motion of the plaintiff ‘that this Appellate Division impose double costs on the defendant in this action, for the reason that his objections to rulings of the Court are frivolous and intended for delay,’ was allowed. The defendant filed in this court an appeal from these orders of the Appellate Division.

The motions were not within the jurisdiction of the Appellate Division. Its jurisdiction is limited to matters which have been reported to it by the trial court, or matters incidental to such reports, among which are included passing upon petitions to establish reports and ordering a cause to proceed as though no claim for a report had been made when the party claiming such report does not duly prosecute it. G.L.(Ter.Ed.) c. 231, § 108. See also Buchannan v. Meisner, 279 Mass. 457, 460, 181 N.E. 742. The motions do not fall within any of these categories. Reports, as already stated, had been dismissed and a petition to establish a report denied. Nothing relating to this cause was pending before the Appellate Division when the motions were presented. See Rule 28 of the District Courts (1932), as amended. Moreover, the statutory authority of the Appellate Division to impose double costs applies only where the Appellate Division dismisses a report of a ruling complained of and decides that the objection to the ruling was frivolous and intended for delay, or where a person claiming a report does not prosecute it duly. G.L.(Ter.Ed.) c. 231, § 108. The order imposing double costs was made by the Appellate Division not only after it had dismissed reports and denied a petition to establish a report, but even after such orders of the Appellate Division had been affirmed by this court on appeal by rescripts directed to the trial court. After these rescripts it was too late for the Appellate Division to modify any of its orders so affirmed by imposing double costs, and it did not purport to do so.

The Appellate Division should have declined to entertain the motions, or, at most, should have dismissed them. In effect, though not in terms, it dismissed the motion to ‘stay, abate, or discontinue proceedings.’ This motion had no standing in the Appellate Division and has no better standing in this court on appeal. See Commonwealth v. New York Central & Hudson River Railroad, 206 Mass. 417, 427, 92 N.E. 766,19 Ann.Cas. 529. Since this motion was effectively disposed of by the Appellate Division it is necessary here only to dismiss the appeal, as is done where the Appellate Division has jurisdiction but an appeal to this court does not lie. See Hammond v. Boston Terminal Co., Mass., 4 N.E.2d 328;Robinson v. Wm. Brown & Sons Co., Mass., 17 N.E.2d 153, and cases cited.

The motion for double costs, from the allowance of which the defendant appealed to this court, must be dealt with somewhat differently. The Appellate Division by allowing the motion impliedly...