Lynn Gas & Electric Co. v. Creditors' Nat. Clearing House, Inc.

• Decision Date: 04 March 1921
• Citation: 237 Mass. 505,130 N.E. 111
• Parties: LYNN GAS & ELECTRIC CO. v. CREDITORS' NAT. CLEARING HOUSE, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

237 Mass. 505

130 N.E. 111

LYNN GAS & ELECTRIC CO.

v.CREDITORS' NAT. CLEARING HOUSE, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

March 4, 1921.

Error to Supreme Judicial Court, Suffolk County.

Petition for review of the Lynn Gas & Electric Company against the Creditors' National Clearing House, Incorporated, begun in the municipal court of Boston. After hearing finding was made in favor of plaintiff, and the case was then reported to the appellate division, which dismissed the report; its action being affirmed on appeal. Thereafter the municipal court entered judgment, and defendant appealed to the superior court, whereupon plaintiff petitioned for writ of error. Judgment affirmed.

See, also, 235 Mass. 114, 126 N. E. 364.

H. Ashley Bowen, of Lynn, for plaintiff in error.

W. Hector S. Kollmyer and Isaac Horenstein, both of Boston, for defendant in error.

RUGG, C. J.

This is a petition for a writ of error. The writ of error and writ of scire facias issued, the defendant pleaded that there was no error of law on the record, and thus the case is before us. Perkins v. Bangs, 206 Mass. 408, 92 N. E. 623.

The pertinent facts are these: Upon petition of the plaintiff a writ of review issued in the municipal court of the city of Boston. After hearing a finding was made for the plaintiff in review. The case then was reported to the appellate division and came to this court on appeal. It was held that the appellate division was without jurisdiction to hear such a proceeding on report and that the action of the trial judge could be reviewed only by appeal to the superior court. 235 Mass. 114, 126 N. E. 364. No judgment was in fact entered on the record in the municipal court until after receipt on February 27, 1920, of the rescript from this court affirming the order of the appellate division discharging the report for want of jurisdiction. On March 5, 1920, judgment actually was entered on the record and the defendant filed an appeal to the superior court, which was recognized by the municipal court, papers have been transmitted to the superior court and the case appears as pending on the docket of the latter court.

The error alleged is that, since there was no intervening order to stay judgment, and since the appellate division had no jurisdiction to consider the report, the case was ripe for judgment and actually went to judgment automatically on the Friday following the date of the decision of the judge of first instance, under R. L. c. 177, § 2. ‘Judgment in civil actions and proceedings ripe for judgment in * * * municipal courts shall be entered at ten o'clock in the forenoon on Friday of each week * * *’ (G. L. c. 235, § 2), and that therefore the entry of judgment on March 5, 1920, and the subsequent appeal to the superior court were without warrant in law and void.

It is not easy to give a universally applicable definition of the term ‘ripe for judgment’ as used in the statute. It has been said in general to be ‘when, under the last entry, the case seems to have been brought to a final determination, and everything seems to have been done that ought to be done before the entry of a final adjudication upon the rights of the parties.’ American Woodworking Machinery Co. v. Furbush, 193 Mass. 455, 457, 79 N. E. 770. In the application of this rule numerous cases have been held ripe for judgment although some matter remained on the surface of the record undisposed of. Dunbar v. Baker, 104...