Kingsley v. City of Fall River

• Decision Date: 25 October 1932
• Citation: 280 Mass. 395,182 N.E. 841
• Parties: KINGSLEY et al. v. CITY OF FALL RIVER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

280 Mass. 395

182 N.E. 841

KINGSLEY et al.

v.CITY OF FALL RIVER et al.

Supreme Judicial Court of Massachusetts, Bristol.

Oct. 25, 1932.

Report from Superior Court, Bristol County; Donahue, Judge.

Suit by Frank H. Kingsley against the City of Fall River and others, wherein the American Hardware Company and another intervened. An interlocutory decree was entered revoking a final decree in favor of named intervener. On report.

Reversed and rendered.

J. B. Kelley, Jr., of Fall River (A. E. Seagrave, of Fall River, on the brief), for plaintiffs.

B. J. McDonald, Jr., of Fall River, for surety.

RUGG, C. J.

A suit in equity was brought by Frank H. Kingsley against the city of Fall River, James Crosson as trustee in bankruptcy of Greany & Sherry, Inc. (hereafter called the contractor) and the Detroit Fidelity & Surety Company to recover for materials furnished to the contractor in the construction of a school building of the city, and to apply, in satisfaction of his claim, the proceeds of a bond given under G. L. c. 149, § 29, by the contractor to the city as security for the payment of all materials and labor used in the construction of the school building. The surety on the bond was the Detroit Fidelity & Surety Company, hereafter called the surety. The American Hardware Company and the Republic Fire Proofing Company, Inc., were allowed to intervene in this suit as claimants, St. 1929, c. 110, to recover for materials furnished by each to the contractor in the construction of the school building. The case was referred to a master. Before hearing, the claim of Frank H. Kingsley, the original plaintiff, was settled. The master filed a report in favor of the American Hardware Company and disallowed the claim of the Republic Fire Proofing Company, Inc. Separate interlocutory decrees were entered confirming the master's report as to each intervenor. No appeal was taken by the Republic Fire Proofing Company, Inc. The surety appealed as to the American Hardware Company who, as intervenor, is now the only party prosecuting the case against the surety, and will be hereafter termed the intervenor. There was entered under date of October 17, 1930, a decree of the tenor following: ‘Frank H. Kingsley vs. City of Fall River, et al. Final Decree. This case came on to be heard at this sitting upon the report of the master and was argued and it appearing that the report of the master has been duly confirmed and it appearing that the defendant, Detroit Fidelity & Surety Company is indebted to the plaintiff, American Hardware Company, on the contract of said plaintiff with the City of Fall River, and it appearing that said defendant Surety Company has failed to pay to the said plaintiff the amount thereof in accordance with the terms of its bond of indemnity to said City of Fall River, it is hereby ordered, adjudged and decreed that the said defendant Detroit Fidelity & Surety Company is indebted to the plaintiff American Hardware Company in the sum of $3,658.29 together with interest from November 5th, 1929 in the sum of $231 and costs in the sum of $17.50 and that an execution is ordered to issue therefor.’ On the reverse of the decree was the following: ‘Frank E. Kingsley, et al vs. City of Fall River, et al. Final Decree as to claim of American Hardware Co. Filed & Entered-Oct. 17, 1930.’ Prior to the entry of this decree there had been no interlocutory decree as to the city and the contractor, other parties defendant. The surety seasonably filed an appeal from this decree designating it therein ‘the final decree.’ It did not enter the appeal as required by the statute and on March 17, 1931, an order was entered to the effect that the appeal be dismissed. Decree in conformity to that order was entered on January 12, 1932. In the following February execution issued against the surety which has not been satisfied. Thereafter the surety filed a motion that the execution be returned to court upon the ground that it ‘was improperly issued,’ and another motion that the decree of October 17, 1930, be stricken out and expunged ‘upon the ground that although styled final decree it is not in fact a final decree.’ Upon these motions an ‘Interlocutory Decree’ was entered on March 1, 1932, revoking the decree of October 17, 1930, and ordering the intervenor to return the execution into court. The validity of this decree has been reported for our determination before further proceedings.

The decisive question to be determined is whether the decree of October 17, 1930, already recited in full, was in truth a final decree. If it was a final decree, then plainly the interlocutory decree of March 1, 1932, was improperly entered and of no effect. It is an established principle that after the entry of a final decree in a suit in equity the case is finally disposed of subject to such rights of appeal as the law affords, and the court has no further power to deal with the case except upon a bill of review. White v. Gove, 183 Mass. 333, 340, 67 N. E. 359;Martell v. Dorey, 235 Mass. 35, 39, 40, 126 N. E. 354;Morgan v. Steele, 242 Mass. 217, 136 N. E. 77;Lebow v. Sneierson, 265 Mass. 116, 163 N. E. 766;Holyoke National Bank v. Dulitzky, 273 Mass. 125, 126, 127, 173 N. E. 405. There are certain exceptions to this rule, as, for example, where clerical errors, mistakes in computation or irregularities in making up the record have occurred, or where final decree has been entered on default of a party through the negligence or mistake of his attorney or want of notice of the pendency of the suit. Thompson v. Goulding, 5 Allen, 81, 82;Sullivan v. Sullivan, 266 Mass. 228, 165 N. E. 89;Cohen v. Industrial Bank & Trust Co., 274 Mass. 498, 503, 175 N. E. 78. The motions upon which the reported interlocutory decree was founded set out no such exceptions to the established rule as ground for the requested action and none is set forth in that decree.

The circumstance that the decree of October 17, 1930, is denominated final decree is not decisive. The nature of a paper entered on the record of a court must be determined according to its essential characteristics and not by its name. Merrimac Chemical Co. v. Moore, 279 Mass. 145, 181 N. E. 219;Check v. Kaplan (Mass.) 182 N. E. 305. The surety described it as a final decree in its appeal. Where deliberate action by a judge of a court of superior and general jurisdiction is under review there is some presumption that familiar words and terms are intended to be used in their common signification and with a purpose to be accurate.

[4] It is argued that that decree was not final because it did not conform to the conventional, accepted and undoubted general rule that ‘No decree is a final one, which leaves anything open to be decided by the court, and does not determine the whole case,’ Forbes v. Tuckerman, 115 Mass. 115, 119;Gerrish v. Black, 109 Mass. 474, 477;Bartlett v. Slater, 211 Mass. 334, 352, 353, 97 N. E. 991;Booras v. Logan, 266 Mass. 172, 174, 164 N. E. 921, and there are expressions to the effect that there can be but ‘one final decree in a suit in equity.’ John Simmons Co. v. Grier Brothers Co., 258 U. S. 82, 89, 42 S. Ct. 196, 199, 66 L. Ed. 475. There are instances, however, in modern practice where several parties are joined in one suit, where the crucial issues are different as to different parties and where, leaving other issues as to other parties open, conclusive and complete disposition may be made of issues affecting one party by final decree which can come before this court on appeal. That is especially true where issues are raised by those not originally made parties, who become such by being allowed to intervene. Waite v. Worcester Brewing Co., 176 Mass. 283, 57 N. E. 460. It is not essential to a final decree in all cases that it be the very last step in the proceeding or put an absolute end to it. The word final in this connection refers to the effect of the decree rather than the mere order of time. Boston & Maine Railroad v. Town of Greenfield, 253 Mass. 391, 396, 149 N. E. 322;Degnan v. Maryland Casualty Co., 271 Mass. 427, 430, 171 N. E. 482. Where a suit was brought on a judgment against a principal defend...