Mcdermott v. Justices of Mun. Court of City of Boston 

• Decision Date: 15 September 1934
• Parties: McDERMOTT v. JUSTICES OF MUNICIPAL COURT OF CITY OF BOSTON (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 563

192 N.E. 18

McDERMOTT

v.JUSTICES OF MUNICIPAL COURT OF CITY OF BOSTON (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 15, 1934.

Exceptions from Supreme Judicial Court, Suffolk County; Pierce, Justice.

Proceedings on petition for a writ of prohibition and petition for a writ of mandamus by Charles W. McDermott against the Justices of the Municipal Court of the City of Boston. The petitions were ordered dismissed upon hearing by a single justice, and petitioner brings exceptions.

Exceptions overruled.

W. H. Shea, of Boston, for petitioner.

J. Barker, Jr., of Boston, for respondent.

RUGG, Chief Justice.

These petitions have been consolidated for purposes of argument. They are brought to prevent the respondents from hearing and from exercising further jurisdiction in supplementary proceedings under G. L. (Ter. Ed.) c. 224. They were heard upon an agreed statement of facts. Thus it appears that a judgment creditor of the petitioner had instituted supplementary proceedings, that on March 12, 1931, after examination finding was made that ‘debtor has ability to pay’ and an order was entered requiring the debtor, the present petitioner, who was the judgment debtor and is hereafter so designated, to pay $200 per month to the attorney for the judgment creditor. In May, 1932, petition was filed in behalf of the judgment creditor setting forth that the judgment debtor had failed to comply with the order of court and had thereby committed a contempt of the court and praying for notice to issue. Thereupon notice issued reciting the order for payment and the alleged failure to comply therewith and notifying the judgment debtor to appear to show cause why he should not be adjudged in contempt. Hearing was had on that petition on June 29, 1932. No decision was rendered. On July 18, 1932, the judge before whom that hearing had been held in view of his proposed absence notified both counsel that he had continued the case to be heard before another judge in August, 1932, and by his order docket entry was made ‘proceedings brot forward and continued to’ August 3, 1932. The hearing was further continued to August 17, 1932, when the case was called, the debtor appeared and the creditor did not. The clerk then announced, ‘proceedings dismissed’ and afterwards made a docket entry of this tenor ‘Dr. appears Cr. does not Proceedings dismissed by order of Court. Carr, J.’ Thereafter early in October, 1932, another clerk changed the docket entry by striking out ‘Proceedings' and inserting in place thereof ‘Petition for notice to show cause.’ The attention of the court had not been drawn to the docket entries and no order had been made for a change. Later another petition for notice to show cause was filed and notice issued. The judgment debtor filed a special appearance for the sole purpose of objecting to the jurisdiction of the court to proceed further. The case came on to be heard in February, 1933. The judgment debtor took the position that the entire proceeding had been dismissed according to the docket entries and that therefore the court had no further jurisdiction. At that hearing it appeared that the judge who presided on August 17, 1932, had no recollection of the proceedings on that day. Testimonywas introduced touching the hearing on June 29, 1932, as tending to throw light on the docket entries. The trial judge made findings and rulings, so far as now material, of this tenor: ‘I find and rule that the only ‘proceeding’ before the court which on July 18, 1932 was ‘brot forward and continued to August 3rd, 1932’ * * * was the notice to show cause issued May 20, 1932; that on August 3, 1932, that notice to show cause was duly continued to August 17, 1932, and was the only matter then before the court for action; that the announcement ‘Proceedings dismissed’ affected only the notice to show cause; that the docket entry ‘Proceedings dismissed’ reflected only the real action of the court which was the dismissal of the notice to show cause, and did not vacate or otherwise affect the previous order for payment made March 12, 1931; that the change made by the clerk was a correction of phraseology which the court could have ordered to be made. * * *'

It is assumed in favor of the petitioner but without so deciding that a petition for the writ of prohibition would lie if his contentions as to the record were sound. See G. L. (Ter. Ed.) c. 224, § 18; Ashley v. Three Justices of Superior Court, 228 Mass....