Maraghey v. Tarpey
| Decision Date | 09 May 1956 |
| Citation | 334 Mass. 157,134 N.E.2d 440 |
| Parties | John MARAGHEY and others v. Bernard M. TARPEY, Administrator, and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. Sherman Rogan, Boston, for plaintiffs.
Lazarus H. Goldberg, Boston, for defendant Tarpey.
Joseph P. Graham, Boston, for defendant Graham.
Before QUA, C. J., and WILKINS, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
This bill for a declaratory decree filed by three of four residuary legatees under the will of Bernard Maraghey laid claim to a $2,000 fund held in escrow by three attorneys, two of whom were named as defendants. The fourth residuary legatee, Veronica M. Tarpey, was dead, and the administrator of her estate was named as a defendant with the recital that the administrator claimed the fund adversely by virtue of an assigned mortgage debt secured by a mortgage of real estate of the plaintiffs' testator. It was alleged that the parties had agreed to the sale of the real estate and the placing in escrow of proceeds of the sale iin place of the mortgage. The third escrow agent was the plaintiffs' attorney, not made a party by the bill. The prayers were that the fund be adjudged the property of the four residuary legatees under Maraghey's will and for 'other and further relief.'
The defendant administrator in his answer set up his counterclaim under the mortgage note, mortgage and assignment and prayed that the fund be adjudged to belong to him as administrator and ordered paid to him. Pursuant to another prayer of the counterclaim the third escrow agent was made a party. A demurrer filed by him was overruled and he claimed an appeal. He and the plaintiffs answered the counterclaim. The plaintiffs later moved to dismiss their bill for a declaratory decree and this motion was allowed without prejudice to the right of the defendant administrator to an adjudication upon his counterclaim. No appeal was taken from the decree dismissing the bill. After hearing, a final decree was entered on the counterclaim on February 25, 1955, ordering the fund with accrued interest paid to the defendant administrator. The plaintiffs appealed from this decree on March 16, 1955. On May 5, 1955, the plaintiffs filed a written request that the evidence at the trial be reported. This was denied after hearing on September 16, 1955, and the plaintiffs appealed. On September 27, 1955, the plaintiffs' attorney filed an affidavit making oath that on or about March 12, 1955, he presented to the trial judge in the Superior Court 'for allowance the plaintiffs' request that the evidence at the trial be reported * * *.'
We find no error.
The demurrer was frivolous. The counterclaim plainly was not multifarious or vague, as, in substance, claimed, and it did not fail to state a 'cause of action' against the third escrow agent. The plaintiffs' attorney had drawn and filed the bill making parties the two other escrow agents. Obviously they, and he, were joined to enable a decree to be made, as was done, directing them to pay over the fund.
No error appears in the denial of the request that the evidence be reported. Neither the statute, G.L. (Ter.Ed.) c. 214, § 24, nor the applicable Superior Court rule (76) specified the time within which the request must be made. The policy manifested in the statutory provisions governing the processing of appeals requires, however, that any party wishing a report of the evidence act with reasonable diligence in requesting it and bringing the request to the judge's attention for action. The request having been allowed we have held that it is by implication the duty of the appellant to procure the transcript and to do so with reasonable diligence....
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Flynn v. Brassard
...likelihood to remove previous uncertainty as to the timeliness of a request for a report of the evidence. See Maraghey v. Tarpey, 334 Mass. 157, 158--160, 134 N.E.2d 440 (1956).a. Mass.Adv.Sh. (1973) 911, 914--915.6 Eleven of the deeds and plans seemingly received in evidence in this case w......
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Linse v. O'Meara
...filed with the clerk was complete. See Hubbard v. Southbridge Natl. Bank, 297 Mass. 17, 19, 8 N.E.2d 351. See also Maraghey v. Tarpey, 334 Mass. 157, 159, 134 N.E.2d 440. The trial judge and the parties, however, obviously supposed that the whole transcript had been filed with the clerk as ......
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McMahon v. Krumrine
...was over and nearly three months after the entry of the final decree in this matter. This was an inordinate delay. Maraghey v. Tarpey, 334 Mass. 157, 159, 134 N.E.2d 440, and cases cited. The judge properly denied the motion. Nor does error appear in the court's refusal to allow an amendmen......