Martell v. Moffatt
| Decision Date | 24 June 1931 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | EDWARD A. MARTELL v. DAVID W. MOFFATT, administrator,& others. SAME v. DAVID W. MOFFATT, administrator, & another. EDWARD A. MARTELL v. DAVID W. MOFFATT, administrator, & others. SAME v. DAVID W. MOFFATT, administrator, & another. |
April 13, 1931.
Present: RUGG, C.
J., CARROLL, WAIT SANDERSON, & FIELD, JJ. Middlesex. May 21, 1931. -- June 24, 1931. Present: RUGG, C.J., CROSBY, PIERCE, CARROLL, & WAIT, JJ.
Probate Court Appeal: dismissal for failure to prosecute; Report of facts by judge; Petition for leave to prosecute appeal.
A delay by a judge of probate in filing a report, requested of him by an appellant under G.L.c. 215, Section 11, did not excuse noncompliance by the appellant with the requirement of St 1929, c. 265, Section 1, that he should give the register of probate, within ten days after his appeal, an order in writing for the preparation of the necessary papers for presentation of the appeal to this court.
The amendment of St. 1929, c. 265, Section 1, by St. 1931, c. 219, did not affect the rights of parties under a dismissal of an appeal already made under the earlier statutes.
This court has no jurisdiction, either under G.L.c. 215, Section 15, or under G.L.c. 211, Section 11, to entertain a petition for leave to enter in this court an appeal from a final decree of a probate court after such an appeal has been dismissed for failure by the appellant to observe the requirements of St. 1929, c. 265, Section 1.
TWO PETITIONS IN EQUITY, filed in the Probate Court for the county of Middlesex on August 7, 1930, the first against David W. Moffatt, both individually and as administrator of the estate of Mary Ann Martell, and against Charles A. Martell, and the second against David W. Moffatt individually and as administrator of the estate of Judson Gordon Martell.
The petitions were heard by Leggat, J., by whose order final decrees were entered dismissing them. The petitioner appealed. Further proceedings relating to the allowance by the judge of motions to dismiss the appeals are described in the opinion.
While the above petitions were pending in this court on the appeals by the petitioner from the decrees dismissing his appeals, the petitioner filed in this court
PETITIONS for leave to enter late his appeals from the final decrees dismissing his original petitions.
J.T. Pugh, for Edward A. Martell. R.J. Lane, (D.F. Collins with him,) for David W. Moffatt, administrator, and another.
The first two of these cases are appeals from the allowance of motions for dismissal of appeals to the full court from final decrees in equity entered in a probate court. The material facts are these: Edward A. Martell, hereafter called the petitioner, brought, in respect to each of two estates, a petition in equity. Decrees were entered on December 10 1930, dismissing each petition. The petitioner, on December 12, 1930, filed a claim of appeal from each decree and a request for a report of the material facts as found by the trial judge. Both were seasonably filed. G.L.c. 215, Sections 9, 11. No report of material facts as required by said Section 11 has been filed. The petitioner was the party on whom rested the obligation to cause all necessary papers to be prepared for presentation of the cases to the full court, and he did not, within ten days after his appeal was filed, give any order in writing to the register of probate for the preparation of such papers. It does not appear that the evidence, if any, upon which the original decree was based, was taken stenographically so that it might be reported on appeal, nor that the decree was entered as a ruling of law. Since the cases now come before us on report of material facts found by the judge with respect to the motions to dismiss, it is to be assumed that no such factors exist. Motions to dismiss the appeals were filed on January 27, 1931, and, after hearing, allowed on February 3, 1931. The ground alleged in each motion was failure of the appealing party seasonably to give order in writing to the register of probate for the preparation of the necessary papers and copies in conformity to the requirements of St. 1929, c. 265, Section 1, G.L.c. 231, Section 135. The words of the statute here material are: "In order to carry any question of law" from any probate the register The time for giving the order in writing for preparation of the papers is thus fixed by imperative statutory words as "within ten days after the appeal." Niosi v. Leveroni, 274 Mass. 115 . McCarty v. Boyden, 275 Mass. 91 . There can be no doubt about the date of an appeal. It is established by the record of the court. G.L.c. 215, Section 15. Appeal was taken in each of the cases at bar on December 12, 1930. There was no compliance with the statutory mandate already quoted, because no order in writing for the preparation of the necessary papers and copies was given to the register within ten days after the appeal. Although the judge did not within that period of ten days comply with the requirement of G.L.c. 215, Section 11, by filing report of material facts, that failure did not extinguish or adversely affect the substantial rights and obligations of the appealing party. The burden resting on the register by the statutory words already quoted is to give to the appealing party the necessary estimates "As soon as may be after receiving" from him the written order. No specific time in days is fixed within which the register must furnish the estimate. Manifestly it would have been impossible for him to make accurate estimates in the cases at bar until the trial judge had complied with the requirement that he file a report of the material facts found by him. No question arises as to knowledge by the register of the request for such report, because it is a definite fact in the cases at bar that it was made. As matter of precaution and to avoid possibility of misunderstanding, copy of such request with date and affidavit of its having been given ought seasonably to be filed in court by the party making it. Doubtless such request might itself be filed in court provided it reaches the judge within the four days specified in G.L.c. 215, Section 11. The appealing party would incur no liability by giving the order in writing for preparation of the papers in such circumstances. He would simply be complying with the statute, and would put upon the register the burden of furnishing him with the estimate. Since the register obviously would be under the necessity of awaiting the filing of the required report by the judge before giving the estimate, the appealing party likewise must wait until notice is given him in writing of the amount of such estimate before taking the next step open to him in prosecuting his appeal. When such estimate has been given, then he must within twenty days after its date pay the amount of the estimate or his appeal will go for naught and his order for preparation of the papers will be cancelled, unless some other form of relief be afforded.
Clearly, the appealing party was entitled as of right to a report of the material facts by the judge. That is not only established by the statute but is essential to give the appellant an effectual review on appeal. Snow v. Boston Blank Book Manuf. Co. 153 Mass. 456 , 458-459. Worcester v Lakeside Manuf. Co. 174 Mass. 299 , 300. Dwyer v. Dwyer, 239 Mass. 188, 190. Building Inspector of Salem v. Gauthier, 259 Mass. 615 . Moreover, in view of the request for a report of material facts, the record was not complete in essentials, so that controverted questions might be considered...
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