Home Owners' Loan Corp. v. Sweeney
|17 April 1941
|33 N.E.2d 575,309 Mass. 26
|HOME OWNERS' LOAN CORPORATION v. ELIZABETH R. SWEENEY.
|United States State Supreme Judicial Court of Massachusetts Supreme Court
April 10, 1941.
Present: FIELD, C.
J., LUMMUS, QUA DOLAN, & COX, JJ.
Practice, Civil Exceptions: failure to prosecute, notice of allowance.
A motion in the Superior Court "to dismiss" a bill of exceptions for failure to comply with the requirements of G. L. (Ter Ed.) c. 231,
300, Section 2 that the exceptions be overruled.
Failure of a clerk of the Superior Court to comply with Rule 74 of that court (1932) requiring him to give notice of the allowance of a bill of exceptions does not require that the exceptions be dismissed. Upon the allowance of exceptions saved at a trial on the merits in the
Superior Court, the case is "ripe for final preparation and printing of the record for the full court" under G. L. (Ter. Ed.) c. 231, Section
135, and an order in writing for the preparation of the papers must be given within ten days thereafter, irrespective of whether the clerk of court gives notice of the allowance of the exceptions as required by
Rule 74 of the Superior Court (1932).
An extension of the time allowed by G. L. (Ter. Ed.) c. 231, Section 135, for the giving of the order for preparation of papers for presentation of a case to the full court is of no effect if not granted until after the ten-day period fixed by the statute for the giving of such order.
On the sustaining of an exception by the plaintiff to the denial of his application in the Superior Court for the overruling, under G. L. (Ter.
SUMMARY PROCESS, began in the Central District Court of Worcester by writ dated October 14, 1939.
On appeal to the Superior Court, the action was tried before Dillon, J., and a verdict returned for the plaintiff. The defendant alleged exceptions.
The rulings upon motions respecting the dismissal of exceptions saved by the defendant and by the plaintiff, described in the opinion, were by Donnelly, J.
M. H. Selzo, (J.
J. Brennan with him,) for the plaintiff.
W. Sweeny, for the defendant.
This action of summary process was tried in the Superior Court, on evidence, before a judge and a jury. There was a verdict for the plaintiff on October 29, 1940. The defendant, on November 18, 1940, claimed an appeal to this court and filed a bill of exceptions in the Superior Court. Obviously the appeal would not lie. G. L. (Ter. Ed.) c. 231, Section 96. But, as appears from a copy of the docket entries in the case, transmitted to this court (G. L. [Ter. Ed.] c. 231, Section 135 Styrnbrough v. Cambridge Savings Bank, 299 Mass. 22 , 23), the defendant attempted to perfect this appeal by ordering, on November 26, 1940, the preparation and printing of the record of the case on appeal. The defendant's bill of exceptions was allowed by the trial judge on December 20, 1940, at a hearing at which the parties were represented by counsel. The defendant did not order the preparation and printing of the record of the case on exceptions at any time before January 9, 1941 -- more than ten days after the bill of exceptions was allowed.
The statutory requirements regulating the carrying of questions of law to this court, material to matters now to be considered, are contained in G. L. (Ter. Ed.) c. 231, Section 135. That section provides in part that in "order to carry any question of law" from the Superior Court to this court "upon . . . exception . . . the party having the obligation to cause the necessary papers . . . to be prepared shall give to the clerk . . . of the court in which the case is pending, within ten days after the case becomes ripe for final preparation and printing of the record for the full court, an order in writing for the preparation of such papers and copies of papers for transmission to the full court."
The defendant's bill of exceptions has been entered in this court, following a hearing in the Superior Court upon a so called motion -- filed by the plaintiff on January 29, 1941 -- "to dismiss" the defendant's bill of exceptions on the ground that "no order for estimate of the cost of printing had been filed within ten days after the allowance" of the bill of exceptions. On this motion the judge, on February 11, 1941, ruled, subject to the plaintiff's exception, "that since Rule 74 of the Superior Court requires that notice of the allowance of the bill of exceptions be sent by the clerk of courts to the parties . . . the case was not ripe for the transmission of the papers to the Supreme Judicial Court until after notice was given by the clerk of courts to the defendant on January 7, 1941," and ordered "that the clerk as soon as may be hereafter shall furnish to the defendant an estimate of the cost of printing the bill of exceptions in this case and that if within twenty days after receipt of this estimate the defendant shall pay into court the amount of the said estimate, then the papers shall be transmitted to the Supreme Judicial Court for the Commonwealth session thereof, otherwise the bill of exceptions shall be dismissed." The plaintiff also claimed "exceptions to the ruling on the ground that notice given by the defendant after the notice of January 7 does not comply with the rule regarding the giving of an order for the estimate." The plaintiff's bill of exceptions was allowed and has been entered in this court.
Each party has filed a motion in this court that the bill of exceptions of the other party be dismissed.
1. The defendant's motion to dismiss the plaintiff's bill of exceptions must be denied. The plaintiff's motion in the Superior Court to which this bill of exceptions relates obviously was, in substance, an application to the Superior Court under G. L. (Ter. Ed.) c. 231, Section 133, as amended by St. 1933, c. 300, Section 2, that the defendant's bill of exceptions be overruled by reason of the defendant's neglect "to take the necessary measures by ordering proper copies to be prepared" to carry questions of law to this court. The plaintiff's motion must be treated in accordance with its true nature. Johnson v. Johnson, 303 Mass. 204 , 206. See Wiakowicz v. Hwalek, 273 Mass. 122 , 123. It was seasonably presented to the Superior Court. See Cherry v. Auger, 300 Mass. 367 , and cases cited. Said Section 133, as amended, provides that there "shall be no right to take an appeal, exceptions or other proceeding in the nature of an appeal from such an order . . . overruling exceptions . . . except by leave of the full court under section eleven of chapter two hundred and eleven." But the party whose application is denied is not precluded by this statute from bringing to this court by exception questions of law involved in such denial, in accordance with the practice applicable to exceptions generally. See Flood v. Grinnell, 286 Mass. 214; Boston v. Santosuosso, 302 Mass. 169 , 171, 176.
The defendant however, relies, as a ground for dismissing the plaintiff's bill of exceptions entered in this court, on the fact that no notice of the allowance of this bill of exceptions was sent by the clerk of the Superior Court to the defendant. Rule 74 of the Rules of the Superior Court (1932) provides that the "clerk shall notify the parties of the allowance or disallowance of a bill of exceptions." This rule, however, imposes a duty upon the clerk as a public officer. The parties could not control his conduct in respect to sending notice of the allowance of the bill of exceptions. So far as concerns the rights of the parties the rule is directory. Failure of the clerk to comply with it did not vitiate the plaintiff's exceptions, whatever effect such a failure might have upon subsequent proceedings in a case where, by statute or rule, a period of time is to be computed from notice of such allowance or disallowance. Bath Iron Works, Ltd. v. Savage, 262 Mass. 123 , 127. Compare Rule 6 of the Rules for the Regulation of Practice before...
To continue readingRequest your trial