Littlejohn v. Littlejohn

• Decision Date: 14 October 1920
• Citation: 236 Mass. 326,128 N.E. 425
• Parties: LITTLEJOHN v. LITTLEJOHN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 326

128 N.E. 425

LITTLEJOHN

v.LITTLEJOHN.

Supreme Judicial Court of Massachusetts, Franklin.

Oct. 14, 1920.

Davenport & Fairhurst, of Greenfield, for Herbert P. littlejohn.

Maurice J. Levy and Frederick L. Greene, both of Greenfield, for respondent.

RUGG, C. J.

This is a motion made before the full court to dismiss an appeal from a decree of the probate court on the ground of want of prosecution in failing to have printed required papers for consideration by this court and to affirm the decree of the probate court. The motion is opposed on the ground that there is no jurisdiction to entertain the motion. The facts are that the petition was entered in the probate court on May 21, 1920, and final decree was entered on June 15, 1920. Within less than 20 days thereafter the petitioner filed in the probate court an appeal. He caused to be prepared and filed with the clerk of this court a single copy of the papers in the probate court and paid the required entry fee and did nothing more.

It is provided by section 1, c. 274, St. 1919, that ‘a person who is aggrieved by an order, decree or denial of a probate court or of a judge of that court, in any proceeding begun after this act takes effect, may, within twenty days after the entry thereof, appeal from the same to the Supreme Judicial Court, and the appeal shall be heard and determined by the full court, which shall have the like powers and authority in respect thereto as upon an appeal in a suit in equity under the general equity jurisdiction, * * *’ and by section 2 that ‘the appeal shall be pending before the full court as soon as it has been filed in the probate court, and proper copies of papers in the proceeding, as specified in section twenty-one of chapter one hundred and fifty-seven of the Revised Laws, shall be prepared by the register and transmitted to the Supreme Judicial Court and entered in the docket of the full court.’ That chapter made a radical change in the practice concerning appeals from the probate court. Before it went into effect, appeal lay from all decrees entered by the probate court, with exceptions not here material, directly to the Supreme Judicial Court for the county, where a new hearing was had both upon facts and law before a single justice of this court. That no longer is the practice in view of chapter 274. There is now no review of the findings of fact made by the judge of probate except in those instances where they may be brought before the full court in accordance with equity practice as provided in section 4 of chapter 274, and in those instances where issues may be framed for a jury under section 7 of that chapter. Rulings of law may be brought immediately before the full court for review. The first part of section 2 does not stand alone. It is to be read in conjunction with and as dependent upon the rest of the section and the other general provisions of law setting forth the conditions upon which causes may be brought to the consideration of the full court. The reference in section 2 of chapter 274 to the copies required by R. L. c. 157, § 21, does not mean that the register must prepare them at public expense, but it means that the register shall ‘at the expense of the appellant’ (1) prepare and transmit to the clerk of the full court one copy of the papers designated in section 21 for the use of the Chief Justice, and (2) one copy of the papers upon which the question of law arises ‘for each Associate Justice, for each party and for the reporter of decisions.’ See in this connection R. L. c. 159, § 19, as amended by St. 1911, c. 284, § 1; R. L. c. 173, § 117. Finally the appealing party is required by R. L. c. 204, § 6, to pay $3 for the entry of an ‘action or suit’ in the Supreme Judicial Court and ‘for the entry, record, and transmission of papers of each question or cause in the Supreme Judicial Court for the Commonwealth.’

The collocation of the words ‘entry, record, and transmission of papers,’ which appears for the first time in St. 1900, c. 372, § 3, indicates that not only appeal, exceptions or report, but the necessary papers and copies, are essential. See Clemens Electrical Mfg. Co. v. Walton, 168 Mass. 304, 308, 47 N....