Kolda v. National Ben Franklin Fire Ins. Co.

• Decision Date: 27 March 1935
• Citation: 195 N.E. 331,290 Mass. 182
• Parties: KOLDA v. NATIONAL BEN FRANKLIN FIRE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

290 Mass. 182

195 N.E. 331

KOLDA v. NATIONAL BEN FRANKLIN FIRE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 27, 1935

Writ of scire facias by Alexander Kolda against the National Ben Franklin Fire Insurance Company in the municipal court of the city of Boston. From an order of the appellate division dismissing a report by the judge who found for the defendant the plaintiff appeals, and from an order by the appellate division denying a motion to dismiss the plaintiff's appeal, the defendant appeals.

Orders affirmed.

Appeal from Municipal Court of Boston, Appellate Division; Duff, judge.

D Flower, of Boston, for plaintiff.

H. W Cole and R. H. Lee, both of Boston, for defendant.

RUGG Chief Justice.

This is a writ of scire facias brought against the defendant, who was adjudged a trustee in an action begun by the plaintiff by trustee process against one Blanche Kuzmuk as principal defendant. It is brought pursuant to G. L. (Ter. Ed.) c. 246, § 45, to secure judgment and execution against the defendant, who has not paid upon demand the execution issued in the original action. Such a scire facias is not an independent civil action but a judicial writ to enforce the judgment previously rendered. The original action and the writ of scire facias ‘ are part of one continued and connected course of proceedings.’ Universal Optical Corporation v. Globe Optical Co., 228 Mass. 84, 85, 116 N.E. 491, 492; Barringer v. Northbridge, 266 Mass. 315, 318, 165 N.E. 400.

The decision by the appellate division on the merits of the scire facias was adverse to the plaintiff, who claimed an appeal. The defendant filed a motion to dismiss that appeal for want of prosecution in that the plaintiff did not make deposit to pay the estimated expense of the preparation and transmission of necessary papers for this court ‘ within twenty days after the date’ of the notice of such expense from the clerk. That motion was denied after a hearing by the appellate division. The defendant appealed from that denial to this court. The record on this branch of the case consists of the motion, the denial of the motion and the appeal. No facts are reported. No ruling of law was made except such as may be involved in the denial of the motion. The opinion of the appellate division accompanying its disposition of this motion recites a resort to the docket entries and records of the case. Thus it is shown among other matters that on motion of the plaintiff his time for perfecting appeal was by a trial judge extended after hearing to November 7, 1933. If this extension was warranted, the appeal was perfected within the time as extended. The burden of showing error in this respect was on the defendant. Loonie v. Wilson, 233 Mass. 420, 124 N.E. 272. The defendant might have presented requests for rulings of law and asked for a report to the appellate division with respect to that hearing by the trial judge. That was the proper way to bring the matter to the appellate division. G. L. (Ter. Ed.) c. 231, § 108. That course was not pursued. The appellate division is designed to review questions of law shown on a report by the trial judge. Loanes v. Gast, 216 Mass. 197, 199, 103 N.E. 473. While it might exercise discretionary power to ascertain the facts under G. L. (Ter. Ed.) 231, §§ 110, 125 (see Buchannan v. Meisner, 279 Mass. 457, 181 N.E. 742), the appellate division could not be required to do so. It did not exercise that power in the case at bar. It cannot be said that as matter of law on the face of the record the motion ought to have been granted. There is no copy of the notice sent by the clerk to the plaintiff. The docket entry does not show the date of the notice although purporting to show when it was sent. The defendant argues that it must correspond with the docket entry and that hence the order extending the time was not legally permissible because not entered before the time had expired. Hack v. Nason, 190 Mass. 346, 76 N.E. 906; Buchannan v. Meisner, 279 Mass. 457, 459, 181 N.E. 742. That is not necessarily so. It might have been misdated. Its date was a fact which must be found. The ruling that this point was not properly presented to the appellate division cannot be pronounced erroneous. It is not necessary to consider the argument of the defendant to the effect that the date of the notice rather than the time of its receipt is controlling. See Shaughnessey v. Lewis, 130 Mass. 355; Old Colony Trust Co. v. Medfield & Medway Street Railway Co., 215 Mass. 156, 158, 102 N.E. 484; Sweeney v. Morey & Co., Inc., 279 Mass. 495, 501, 181 N.E. 782; Mutual Life Ins. Co. v. Hurni Packing Co., 263 U.S. 167, 175, 44 S.Ct. 90, 68 L.Ed. 235, 31 A.L.R. 102, and cases cited. Wood v. Brotherhood of American Yeomen, 148 Iowa, 400, 126 N.W. 949; Bement v. Trenton Locomotive & Machine Manufacturing Co., 32 N. J. Law (3 Vroom) 513. The result is that the record did not affirmatively show as matter of law that the motion to dismiss ought to have been allowed. Conley v. Fenelon, 266 Mass. 340, 342, 165 N.E. 382; Abeloff v. Peacard, 272 Mass. 56, 59, 171 N.E. 14; Marean v. Kershaw, 281 Mass. 332, 183 N.E. 845.

The record with reference to the merits of the case is meagre. It is stated that the trustee filed an answer in the original case. Its contents are not recited. Before the trial on the scire facias the plaintiff moved that ‘ the evidence together with the findings in the matter of charging the trustee in the original action * * * be brought forward and adopted as the evidence and findings in the present case.’ That motion was allowed without previous notice to the defendant. Thus it appears that, at the hearing on the motion to charge the trustee, an agreed statement of facts was before the court. Summarily stated, that agreed statement was to the effect that the trustee (the present defendant) issued a policy of fire insurance on certain real estate insuring Blanche Kuzmuk, the principal defendant, as owner, payable in case of loss to Needham Co-operative Bank, first mortgagee, as its interest may appear. The insured property was injured by fire and the amount of loss was agreed by the principal defendant and the insurer to be $868.82 on July 10, 1931. The Needham Co-operative Bank, on October 19, 1931, unbeknown to the plaintiff, brought an action against the insurer to recover on the policy. In that action judgment was rendered in favor of the Needham Co-operative Bank for $868.82 interest and costs being waived. In August, 1931, the defendant received notice from one Gilman that he held an assignment from the principal defendant and her husband of all her interest under the loss. The insurer, being the present defendant, paid the Needham Co-operative Bank the sum of $868.82 and execution indorsed as paid in full was filed in court. In addition to these agreed facts, there was evidence at the hearing on the motion to charge the trustee tending to show that at the time of service of process on the trustee the mortgagor had fully restored the damaged property to its former condition. The trustee was charged and execution issued.

When the trustee failed to pay the execution, this scire facias was brought. The present defendant in its answer alleged that it had no goods, effects or credits of the original principal defendant at the time of the action or subsequently. At the trial on the scire facias the execution was admitted in evidence showing due and sufficient demand on the trustee. The general agent of the defendant testified that the policy of insurance was issued by the defendant, that the insured property was damaged by fire, and that the amount of damage due under the policy had been adjusted but not paid at the time of the service of the trustee writ on the defendant as trustee, that action was brought against it by the Needham Co-operative Bank and judgment against it had been paid by it to the bank, and that the present plaintiff was not a party to that action.

The plaintiff presented these requests for rulings, which were denied: ‘ 1. On all the evidence, judgment should be entered for the plaintiff in the sum of $868.82. 2. The findings of the Court in the original action are res adjudicata in the present action. * * * 4. The finding of the Court in the former action based upon the agreed statement of fact is an adjudication of the liability of the trustee.’ The finding was for the defendant. A report was made to the appellate division.

The first request for ruling has not been argued and under the familiar rule is treated as waived.

The second and third...