McMillan v. City of Gloucester

• Decision Date: 02 March 1923
• Citation: 138 N.E. 718,244 Mass. 150
• Parties: McMILLAN v. CITY OF GLOUCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 150

138 N.E. 718

McMILLAN

v.CITY OF GLOUCESTER.

Supreme Judicial Court of Massachusetts, Essex.

March 2, 1923.

Appeal from Superior Court, Essex County.

Proceeding by Lucie McMillan against the City of Gloucester for an abatement of taxes. From the judgment, defendant appeals. Appeal dismissed.

The bill of complaint alleged that the assessors had abated the tax to some extent, but that plaintiff was still taxed more than her just proportion, and her property was assessed in excess of its fair cash value. The case was heard by a commissioner, who found that petitioner was not in the United States during any part of 1921, or for some years prior thereto, and personally had no knowledge that she was required to file a list, and that she filed it as soon as the matter was brought to her attention, and that she had a reasonable excuse for delay in filing the list, and also that the property was overvalued. Defendant attempted to appeal ‘from the judgment in said case,’ but the record contains no judgment other than the words ‘Judgment on commissioner's report.’

Carlton W. Wonson, City Sol., of Gloucester, for appellant.

Philip Nichols, of Boston, and Clinton E. Bell, of Springfield, for appellee.

RUGG, C. J.

This is a complaint under G. L. c. 59, § 65, for an abatement of taxes assessed to the complainant on real and personal property in the respondent city for 1921. The case was referred to a commissioner under an agreement that his findings of fact should be final. The commissioner's report is printed and contains a full finding as to material facts. Under date of September 25, 1922, there is printed in the record, ‘Judgment on commissioner's report,’ unsigned by any judge or clerk of court; and the respondent appealed. Manifestly this is not a judgment; at most it may be treated as an order for a judgment.

The case is not rightly here. The report of the commissioner is no part of the record. Davis v. Gay, 141 Mass. 531, 6 N. E. 549. The parties did not agree that it should be treated as a case stated. Frati v. Jannini, 226 Mass. 430, 115 N. E. 746. Therefore it is not a case where appeal is available for bringing to this court for review errors of law alleged to have been committed in the Superior Court. The commissioner's report should have been embodied in the record by report of the judge or by exceptions or by agreement of parties that it be treated as a case stated. Samuel v. Page-Storms Drop Forge Co., 243 Mass. 133, 137 N. E. 169. Moreover, treating the entry as an order for judgment it is unsigned by any judge, and is incomplete in particulars required by G. L. c. 59, § 68, and in other essentials.

If, however, the case be treated as an appeal from a judgment on a case stated, Manning v. Woodlawn Cemetery Corp., 239 Mass. 5, 9, 131 N. E. 287, no error is shown. The assessors gave notice for all residents and nonresidents to bring in lists of their real and personal estate...