Martell v. Dorey

• Decision Date: 27 February 1920
• Citation: 126 N.E. 354,235 Mass. 35
• Parties: MARTELL v. DOREY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 35

126 N.E. 354

MARTELL

v.DOREY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1920.

Appeal from Superior Court, Suffolk County; John F. Brown, Judge.

Suit by Charles J. Martell against John J. Dorey, Willard B. Bryne, and others. From decree for plaintiff, defendant Bryne appeals. Affirmed.Courtland G. Morse and Robert C. Van Amringe, both of Boston, for appellant.

Isaac Harris and Charles J. Martell, both of Boston, for appellee.

RUGG, C. J.

This is a suit in equity by a judgment creditor of John J. Dorey, who is the principal defendant. Various persons were named as defendants. The only one now sought to be charged is Willard B. Bryne. The suit is brought to reach and apply, in payment of the plaintiff's debt, property of the defendant which cannot be attached or taken on execution in an action at law and which has been placed in the hands of Bryne, in fraud of the creditors of Dorey. Final decree was entered in favor of the plaintiff. Rioux v. Cronin, 222 Mass. 131, 109 N. E. 898. The defendant Bryne appealed.

While the case was pending before the full court on appeal from a final decree, but before argument, the appeal was discharged on motion. Then an amendment to the bill was allowed by a judge of the superior court permitting the plaintiff to allege that certain shares of stock not described in the original bill were in fact owned by Dorey and were held by Bryne in fraud of the rights of the plaintiff. The allowance of such an amendment was beyond the power of the superior court. A final decree in equity had been entered. Thereafter that court had no further power to deal with the case, except on review, save in exceptional instances, of which this is not one. Thompson v. Goulding, 5 Allen, 81, 82;White v. Gove, 183 Mass. 333, 340, 67 N. E. 359;Shannon v. Shepard Mfg. Co., Inc., 230 Mass. 224, 229, 119 N. E. 768, and cases collected. The record fails to show that this was a proper case for the allowance of an amendment nunc pro tunc. Perkins v. Perkins, 225 Mass. 392, 114 N. E. 713. When a suit in equity comes before this court on appeal from final decree with report of evidence, the powers of this court, in order to accomplish justice, are extensive and include that to order or authorize amendments to pleadings. The whole case is before this court to be disposed of as it ought to have been disposed of by the judge who heard the case and entered the decree. If it appears on the record that the decree is broader than the allegations of the bill and yet that there has been a full and fair trial, appropriate amendments may be ordered made in order to comply with the rule that the decree must conform to and not be in excess of the pleadings. In Old Corner Book Store v. Upham, 194 Mass. 101, 80 N. E. 228,120 Am. St. Rep. 532, a final decree was entered in the court below, and the case came before us on appeal with a report of all the evidence. It there was said at page 106 of 194 Mass. at page 231 of 80 N. E. (120 Am. St. Rep. 532):

‘It is competent for this court in the exercise of its discretion to order all the necessary amendments to be made in the pleadings to meet the case made out on the evidence.’

For other cases which have come up on appeal from final decree and in which amendments have been allowed or ordered by this court, see Collins v. Snow, 218 Mass. 542, 106 N. E. 148,Hayes v. Penn Mutual Life Ins. Co., 222 Mass. 382, 389, 111 N. E. 168, and Old Dominion Copper Mining & Smelting Co. v. Bigelow, 199 Mass. 488, 86 N. E. 660. For amendment in action at law on appeal from judgment, see Noble v. Brooks, 224 Mass. 288, 112 N. E. 649.

It follows that the case must be considered on the record presented by the original appeal from the final decree. The proceedings in the superior court after the discharge of the appeal, and before the re-entry of the case in this court, including the affidavits, must be disregarded as having been irregular and without jurisdiction.

The case was heard by a judge of the superior court on answers to interrogatories and oral testimony. The evidence is reported by a commissioner. The judge made a finding of facts. Such an appeal brings before this court for revision questions of fact as well as of law. It is our duty to examine the evidence and to decide the case according to our own judgment, giving due weight to the finding of the judge, whose decision based upon the hearing of oral testimony will not be reversed unless plainly wrong. Lindsay v. Bird, 193 Mass. 200, 79 N. E. 263;Jennings v. Demmon, 194 Mass. 108, 80 N. E. 471.

The only finding of fact by the judge of the superior court now disputed is:

That ‘the defendant William B. Bryne holds OF DRIVER PROHIBITING RULING 75 shares of the preferred stock of the American Sugar Refining Company, evidenced by two certificates, one numbered J24271, dated May 20, 1908, for 25 shares, and the second certificate numbered J28666, dated November 15, 1909, for 50 shares; that this stock is the property of the defendant John J. Dorey, and was issued in the name of Willard B. Bryne under an agreement or understanding between said Dorey and Bryne, with the purpose of concealing the true ownership through a secret trust and in fraud of creditors; that said stock is held by said Bryne without consideration.’

A careful examination of the evidence convinces us that these findings cannot be pronounced plainly wrong. This is one of the cases...