Loonie v. Wilson

• Decision Date: 10 September 1919
• Citation: 124 N.E. 272,233 Mass. 420
• Parties: LOONIE v. WILSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

233 Mass. 420

124 N.E. 272

LOONIE

v.WILSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 10, 1919.

Appeal from Superior Court, Suffolk County; William Cushing Wait, Judge.

Suit by Michael H. Loonie against Frank E. Wilson, the National Surety Company, and the City of Boston. From a decree dismissing the bill as against the Surety Company, but giving relief against the City, defendant Wilson's trustee in bankruptcy appeals. Decree in so far as dismissing the bill against the Surety Company affirmed, and in so far as giving relief against defendant City reversed, and decree directed to be entered, dismissing the bill as against defendant Wilson, his trustee, and the City.

Ralph H. Willard and William H. Taylor, both of Boston, for appellant.

James J. Gaffney, of Boston, for appellee Loonie.

Dunbar, Nutter & McClennen, of Boston, for petitioner Hoar.

James A. Vitelli, of Boston, for intervening petitioner Kelley.

LORING, J.

The plaintiff had a decree in the superior court. From that decree the defendant Ham, trustee in bankruptcy of the defendant Wilson, took an appeal. On August 8, 1918, the plaintiff Loonie made a motion in the superior court that this appeal should be dismissed for want of prosecution. On August 16 this motion was allowed ‘unless papers on appeal are prepared and entered in clerk's office of full court within 10 days.’ On the day after the 10 days expired Ham made a motion, in which he alleged that he was ‘informed that it is not possible to prepare the papers within 10 days; that your respondent intends in good faith to prosecute his appeal. Wherefore your respondent moves the court to extend the time * * * to and including October 1, 1918.’ On August 28, 1918, this ‘motion [was] allowed by the court as of 26th; time extended to September 20, 1918.’

The plaintiff Loonie has made a motion in this court that Ham's appeal be dismissed on the ground that on August 28 (when the order extending the time was made) the jurisdiction of the superior court over the cause had come to an end. That contention is disposed of by the decision of this court in Plaisted v. Cooke, 181 Mass. 118, 63 N. E. 132. In that case it was decided that an order allowing a motion to dismiss a cause unless something is done within a specified time is in legal contemplation an order that the cause will be dismissed if the action in question is not taken within the time specified and that until proof has been made of the fact that the action in question was not taken within the time specified and an order based upon proof of that fact dismissing the action has been entered the jurisdiction of the court has not come to an end. Loonie relies on Hack v. Nason, 190 Mass. 346, 76 N. E. 906. That decision has no bearing on this question.

The conclusion reached in Hack v. Nason was reached because R. L. c. 173, § 106, provides that on the expiration of 20 days the court has no jurisdictionto allow a bill of exceptions unless the time is extended within 20 days. The order made on August 28 should not have been made ‘as of August 26.’ When an order is made as of an earlier day it is made in that form to avoid an intervening act on the theory that there was an error in the earlier order. There was no occasion for such an order in the case at bar. On August 28 the cause was still pending and for that reason the court on that day could modify the earlier order on being satisfied that that ought to be done, although Loonie was entitled to an order dismissing the cause unless the earlier order was modified. Loonie's motion to dismiss the appeal taken by the defendant Ham must be denied.

In addition to his motion to dismiss made in this court Loonie took an appeal from the order of August 28. That raises the question whether that order was correct. By St. 1911, c. 284, § 1, it is provided that ‘an appeal from a final decree of the superior court shall forthwith be entered in the Supreme Judicial Court.’ No power is given to the superior court to extend the time specified in the statute. The question presented by the appeal, therefore, is whether under this statute, which limits the appellant to entering his appeal in the Supreme Judicial Court ‘forthwith,’ the order allowing the appellant to complete his appeal on or before September 20, 1918, was erroneous. Upon taking his appeal it was the duty of the appellant to ‘forthwith’ give an order to the clerk of the superior court to make up and print the record and on the printing being completed to ‘forthwith’ enter the case in the Supreme Judicial Court. Griffin v. Griffin, 222 Mass. 218, 110 N. E. 296.

It seems to be strange if an order to print the record here in question was given by the appellant ‘forthwith’ on the order being made on July 5 that the superior court should have found that in case the printing was completed and the case entered in the Supreme Judicial Court by September 20 it would be entered ‘forthwith.’ The evidence on which this order was made is not before us. With some hesitation we have come to the conclusion that we cannot say that no facts could have existed which would have warranted the superior court in coming to the conclusion that in case the appeal was completed September 20 it would be completed within the time specified in St. 1911, c. 284, § 1. The burden of showing error was on Loonie. In the absence of the evidence on which the superior court acted that burden has not been sustained. The order of August 28 is not shown to be erroneous and must be affirmed.

The bill in the case at bar was brought by five creditors of the defendant Wilson to recover payment of moneys severally due to them from Wilson (1) out of a fund of $4,220.23 retained by the city of Boston pursuant to article 7 of its contract with Wilson, and (2) to recover these sums from the National Security Company by reason of a bond given by it to the city of Boston conditioned for the faithful performance by Wilson of the work which he had contracted to do for the city and also for the payment ‘for all labor performed or furnished and for all materials used in carrying out said contract.’ Wilson's contract with the city was a contract for the ‘collection of ashes, the removal of snow and street cleaning’ and ‘for hauling material which went into the construction or repair of streets.’ The claims of the five plaintiffs against Wilson were for teams and teaming hired of them by him in performing that contract.

As originally drawn the bill was brought on the notion that the city had procured the bond to be given by the surety company in compliance with St. 1909, c. 514, § 23. But that statute applies only in cases where ‘public buildings or other public works are about to be built or repaired [by a county, city or town] * * * upon which liens might attach for labor or materials if they belonged to private persons.’ It was specifically so provided in the original act (St. 1878, c. 209) which applied to contracts of that kind entered into in behalf of the commonwealth. That provision was preserved when that act was re-enacted in Pub. St. c. 16, § 64. But when that act was re-enacted in Revised Laws (R. L. c. 6, § 77) the form of the enactment was changed. Although the provision quoted above was not in terms re-enacted in R. L. c. 6, $ 77, that act (by the true construction of it) is an act limited in the same way that it would have been limited in terms had this clause been re-enacted. When the provisions of R. L. c. 6, § 77, were extened to counties, cities and towns by St. 1904, c. 349, the form of enactment adopted in R. L. c. 6, § 77 was followed, and that form of enactment again was followed in St. 1909, c. 514, § 23. For a history of these acts see Friedman v. County of Hampden, 204 Mass. 494...