Long v. George

• Decision Date: 05 March 1937
• Citation: 7 N.E.2d 149,296 Mass. 574
• Parties: LONG v. GEORGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 574

7 N.E.2d 149

LONG

v.GEORGE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 5, 1937.

Suit in equity by Georgena L. Long against Charles George. From a final decree entered in the superior court, both parties appeal.

Affirmed.Appeal from Superior Court, Suffolk County; Weed, Judge.

E. R. Anderson and A. S. Lawrence, both of Boston, for plaintiff.

S. W. Saltmarsh, of Boston, for defendant.

LUMMUS, Justice.

The defendant brought an action at law in a district court against the plaintiff's father, one George A. Long, and attached as his property certain machinery and tools in a store, by putting a keeper over the goods (G.L. [Ter.Ed.] c. 223, § 48), and also in the manner allowed for bulky goods by G.L.[Ter.Ed.] c. 223, §§ 50, 51. The attachment was discharged, according to the original record of the district court, by the allowance, on February 28, 1930, by a judge of the District Court, of an application or ‘petition’ under G.L.[Ter.Ed.] c. 223, § 114, brought by the plaintiff, in which she claimed ownership of the goods attached. Later, the defendant obtained judgment and execution against George A. Long, caused the same machinery and tools to be taken on execution, and bought them at the sale on execution.

The plaintiff on February 4, 1931, brought this bill in equity, alleging that she owned the machinery and tools so bought, and asking delivery of them to her, and damages. A master's report finding ownership in George A. Long and not in the plaintiff was confirmed, and the bill was dismissed. On the plaintiff's appeal, this court held that the allowance of the application for the dissolution of the attachment adjudicated that the plaintiff owned the machinery and tools, reversed the decree dismissing the bill, and ordered a decree for the plaintiff. Long v. George, 290 Mass. 316, 195 N.E. 377. The rescript from this court to the Superior Court ordered as follows: ‘Final decree to be entered ordering the defendant to deliver to the plaintiff the goods sold at the execution sale, and for such damages, if any, as the plaintiff may be found to have sustained.’

Some of the machinery and tools were returned after the rescript, but the remainder had already been sold. Therefore the final decree after rescript could only give damages, including interest, and costs. Both parties appealed. The appeal of the plaintiff can be disposed of shortly. There was no error in the refusal of the judge to include additional goods in the award of damages, or to admit certain evidence of the value of the goods as a part of a going business conducted by the plaintiff's father but not by the plaintiff.

The appeal of the defendant requires more discussion. At his motion, filed on July 17, 1935, after the rescript from this court to the Superior Court, the judge of the District Court who on February 28, 1930, acted on the application for dissolution of attachment, corrected the record in the District Court of his action taken on that day by striking out on October 2, 1935, the record of the allowance of that application, and substituting therefor the following: ‘Ordered that attachment by keeper be dissolved and the bulk attachment to stand.’ He found that this was ‘the correct order made’ on February 28, 1930. Since the application for dissolution of attachment was based wholly upon ownership of the goods by the plaintiff, action dissolving one form of attachment while preserving another seems inconsistent, in the light of the opinion of this court when the case was here before. But we assume without deciding that if the record on appeal had shown the action of the District Court in its later and corrected form, the decision in Long v. George, 290 Mass. 316, 195 N.E. 377, would have been different.

Doubtless the District Court had power to correct its record even after the lapse of more than five years. Balch v. Shaw, 7 Cush. 282;Fay v. Wenzell, 8 Cush. 315;Merrill v. Kaulback, 158 Mass. 328, 329, 33 N.E. 515;Dewey v. Peeler, 161 Mass. 135, 36 N.E. 800,42 Am.St.Rep. 399;Karrick v. Wetmore, 210 Mass. 578, 579, 97 N.E. 92;Webb v. Cohen, 280 Mass. 292, 182 N.E. 337;Bryer v. American Surety Co. of New York, 285 Mass. 336, 189 N.E. 109; McDermott v. Justices of Municipal Court, of the City of Boston, 287 Mass. 563, 568, 192 N.E. 18;Prenguber v. Agostini, 289 Mass. 222, 224, 225, 193 N.E. 743;A. Doykos & T. Pappas, Inc., v. Leventhal, 290 Mass. 375, 195 N.E. 348.

Doubtless, also, by the practice in this Commonwealth, after the rescript ordering the entry of a final decree for the plaintiff, upon being shown that the record upon which the case was decided in this court was inadequate or erroneous in an essential matter of fact, the Superior Court had power in its discretion to reopen the case in order to obtain a full and accurate revised finding of the facts, and then to enter a decree upon that finding not inconsistent with the principles of law laid down by this court. West v. Platt, 124 Mass. 353;Terry v. Brightman, 133 Mass. 536;Gale v. Nickerson, 144 Mass. 415, 418, 11 N.E. 714;Kenerson v. Colgan, 164 Mass. 166, 168, 41 N.E. 122;Frost v. Courtis, 172 Mass. 401, 52 N.E. 515;Pead v. Trull, 173 Mass. 450, 452, 53 N.E. 901;Day v. Mills, 213 Mass. 585, 100 N.E. 1113;Noyes v. Noyes, 224 Mass. 125, 135, 112 N.E. 850;Johnson's Case, 242 Mass. 489, 495, 136 N.E. 563; Clark v. McNeil, 246 Mass. 250, 257, 140 N.E. 922;Eastman v. Steadman, 269 Mass. 250, 168 N.E. 745;Rudnick v. Rudnick, 281 Mass. 205, 208, 183 N.E. 348; Compare Libby v. New York, New Haven & Hartford Railroad Co., 277 Mass. 1, 177 N.E. 679. The occasional granting by this court to the court below of leave to take such action is often due to caution, and is not always strictly necessary. Beacon Oil Co. v. Maniatis, 284 Mass. 574, 578, 188 N.E. 386;Westfield Savings Bank v. Leahey (Mass.) 197 N.E. 160;Royal Indemnity Co. v. Granite Trucking Co. (Mass.) 4 N.E.(2d) 809;Gaertner v. Donnelly (Mass.) 5 N.E.(2d) 419. We have never adopted the Federal practice, under which the lower court is powerless in this respect unless granted leave by the appellate court. Gale v. Nickerson, 144 Mass. 415, 418, 11 N.E. 714;In re Potts, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994;National Brake & Electric Co. v. Christensen, 254 U.S. 425, 41 S.Ct. 154, 65 L.Ed. 341.

But in the present case theSuperior Court did not permit the defendant to amend his answer by setting up the corrected record of the District Court which would have undermined our decision. The judge exercised his discretion to the contrary, by denying that motion to amend, and by entering a final decree in accordance with the rescript which was based on the record of the District Court as it existed before correction. The defendant on his appeal argues that this exercise of discretion was error.

‘The term ‘ discretion’ implies the absence of a hard-and-fast rule. The establishment of a clearly defined rule of action would be the end of discretion, and yet discretion should not be a word for arbitrary will or inconsiderate action. ‘Discretion means the equitable decision of what is just and proper under the circumstances.’' The Styria v. Morgan, 186 U.S. 1, 9, 22 S.Ct. 731, 734, 46 L.Ed. 1027, quoted in Paquette v. Fall River, 278 Mass. 172, 174, 179 N.E. 588. Whether action within the discretion of the court shall be taken or not ‘is ordinarily * * * a question of fact whether, under the rules of law and the established principles of practice, having regard to the rights and interests of all parties, justice and equity require’ the action in question. Scituate Water Co. v. Simmons, 167 Mass. 313, 314, 45 N.E. 750;Winthrop v. Athol, 216 Mass. 79, 80, 102 N.E. 900;Hopkinton v. B. F. Sturtevant Co., 285 Mass. 272, 277, 189 N.E. 107.

In actions at law ‘Unless he [the judge] shall have refused to exercise that discretion in favor of the * * * party, under circumstances the proved existence of which required for some legal reason that he should do so, or unless he has refused to receive and consider evidence by which that discretion should be guided or controlled, his decision cannot be elsewhere reviewed.’ Commonwealth v. White, 147 Mass. 76, 78, 16 N.E. 707, 710. But facts stated hypothetically in requests for rulings, though not expressly established, may suffice to present a question of law concerning the exercise of a power ordinarily discretionary. Munde v. Lambie, 125 Mass. 367;Russell v. Foley, 278 Mass. 145, 179 N.E. 619;Commonwealth v. Millen, 290 Mass. 406, 195 N.E. 541;Kravetz v. Lepofsky (Mass.) 200 N.E. 865. And error in ruling that no discretion exists is an error of law which may be reviewed on exception. Commonwealth v. Fontain, 127 Mass. 452, 455;Commonwealth v. Lobel, 187 Mass. 288, 72 N.E. 977;Silva v. New England Brick Co., 185 Mass. 151, 69 N.E. 1054;Sanger v. Newton, 134 Mass. 308;Wamesit Power Co. v. Lowell & Andover Railroad Co., 130 Mass. 455. See, also, Bresnick v. Heath (Mass.) 198 N.E. 175. It has been intimated that the exercise of discretion may be revised at law, not only where there has been an error of law, but also where there has been an ‘abuse of * * * discretion,’ which has been defined as a view or action ‘that no conscientious judge, acting intelligently, could honestly have taken.’ Davis v. Boston Elevated Railway Co., 235 Mass. 482, 497, 502, 126 N.E. 841;Mantho v. Nelson, 285 Mass. 156, 188 N.E. 599;Skudris v. Williams, 287 Mass. 568, 192 N.E. 63;Murnane v. MacDonald (Mass.) 2 N.E.(2d) 194. There may be some question how far, if at all, abuse of discretion actually extends beyond error of law. See Welch v. Chase, 213 Mass. 519, 521, 100 N.E. 634.

The present case is a suit in equity, in which the practice is more...