Hubbard v. Southbridge Nat. Bank

• Decision Date: 01 April 1937
• Citation: 8 N.E.2d 351,297 Mass. 17
• Parties: HUBBARD v. SOUTHBRIDGE NAT. BANK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 17

8 N.E.2d 351

HUBBARD

v.SOUTHBRIDGE NAT. BANK et al.

Supreme Judicial Court of Massachusetts, Worcester.

April 1, 1937.

Suit in equity by Katherine J. Hubbard against the Southbridge National Bank and others. From a final decree dismissing the bill, plaintiff appeals; and from a decree dismissing such appeal, plaintiff appeals.

Decree dismissing appeal affirmed.Appeal from Superior Court, Worcester County; Whiting, Judge.

M. L. Glazer, of Boston, for appellant.

H. P. Small, of Springfield, for appellee Southbridge Nat. Bank et al.

RUGG, Chief Justice.

The plaintiff by this suit in equity seeks to have set aside a declaration of trust, a mortgage, and a note signed by her upon the ground that they were signed by her under duress and against her will and without fair and adequate information. The case was heard by a judge of the Superior Court after the appointment under G.L.(Ter.Ed.) c. 214, § 24, of a person to take the evidence. The trial judge filed findings, rulings, and order for decree. Final decree was entered on October 22, 1935, dismissing the bill with costs. The plaintiff claimed an appeal from that decree on October 24, 1935, without filing at that time a transcript of the evidence. On October 29, 1935, she filed request for preparation of the case for the full court. Estimate of the cost was duly mailed to the plaintiff and was seasonably paid by her on November 25, 1935. Transcript of the evidence was filed on June 1, 1936. Notice in writing of the additional estimate covering the cost of printing the transcript was mailed by the clerk of courts to the plaintiff under date of June 9, 1936. The plaintiff filed, on June 30, 1936, a waiver of printing the evidence and a statement that she was willing to rest her case before the full court on the pleadings and report of material findings by the judge. The plaintiff not having paid to the clerk of courts the amount of this estimate within twenty days after the date of the notice of such estimate, as required by G.L.(Ter.Ed.) c. 231, § 135, the defendants, on July 3, 1936, filed motions to dismiss the plaintiff's appeal. These motions contained allegations of the appointment of some one to take the evidence at the trial before the judge, of the entry of the final decree, and of the filing of an appeal by the plaintiff without filing therewith a transcript of the evidence, all as above stated. These motions contained allegations of the further facts that the plaintiff did not pay within twenty days after June 9, 1936, as required by G.L.(Ter.Ed.) c. 231, § 135, the amount of the estimate for printing the evidence, and that the so called waiver of printing the evidence was filed without notification to the defendants and without their consent to the waiver. The prayers of the motions were that the appeal be dismissed (1) for want of prosecution and (2) because the appeal and so called waiver were frivolous and intended merely for delay. On July 27, 1936, these motions were allowed after hearing and a decree was entered dismissing the appeal. From this decree the plaintiff appealed.

It is provided by G.L.(Ter.Ed.) c. 231, § 135, that, ‘In order to carry any question of law * * * from any other court to the full court of the supreme judicial court upon appeal * * * the party having the obligation to cause the necessary papers hereinbefore specified 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. * * * As soon as may be after receiving such written order, the clerk * * * shall make an estimate of the expense of the preparation * * * and shall give such party notice in writing of the amount of such estimate. Such party within twenty days after the date of such notice from the clerk * * * shall pay to him the amount of such estimate.’ It was said in Trade Mutual Liability Ins. Co. v. Peters (Mass.) 195 N.E. 900, 903: ‘Under the practice existing immediately prior to the enactment of St.1931, c. 219 (G.L.[Ter.Ed.] c. 231, § 135), the clerk had the duty of procuring the transcript of evidence. Niosi v. Leveroni, 274 Mass. 115, 174 N.E. 228;Martell v. Moffatt, 276 Mass. 174, 177 N.E. 102. By that statute, the clerk was relieved of that duty, and by implication it was put upon the appellant, who became bound to use reasonable diligence in procuring the transcript. See Cunningham v. First Banker's Union, Inc., 259 Mass. 595, 156 N.E. 708. If * * * an appellant * * * neglects * * * to take the necessary...