Morse v. O'Hara
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | RUGG |
| Citation | 142 N.E. 40,247 Mass. 183 |
| Parties | MORSE v. O'HARA. |
| Decision Date | 03 January 1924 |
247 Mass. 183
142 N.E. 40
MORSE
v.
O'HARA.
Supreme Judicial Court of Massachusetts, Essex.
Jan. 3, 1924.
Exceptions from Superior Court, Essex County; Marcus Morton, Judge.
Proceeding by Warren A. Morse for administration of oath for the relief of poor debtors, in which charges of fraud were made by James O'Hara, judgment creditor. The court made a finding of guilty on the charges of fraud, and refused the oath, and petitioner appealed to the Superior Court, which denied his motion to dismiss his own appeal, and he brings exceptions. Exceptions dismissed.
[247 Mass. 184]J. P. S. Mahoney, of Lawrence, for Petitioner.
R. L. Sisk and W. E. Sisk, both of Lynn, for respondent.
RUGG, C. J.
This case arises out of the arrest of the petitioner on an execution issued in favor of O'Hara against him in an action of tort for personal injuries. The debtor, after having been once refused the oath for the relief of poor debtors,[247 Mass. 185]and after having waited the statutory period thereafter, petitioned another court to administer to him that oath. In that proceeding charges of fraud were preferred against him by the judgment creditor. The court found after examination that the debtor had no property to apply on the execution, but made a finding of guilty on the charges of fraud and for that reason refused the oath. The record states that the ‘debtor appeals from the judgment of guilty upon the charges of fraud.’ He gave recognizance as required and was thereupon discharged from custody.
[1] When the case came on to be heard in the superior court the debtor filed a motion to dismiss his own appeal. It was denied and the debtor appealed. No appeal lies. G. L. c. 231, § 96; Samuel v. Page Storms Drop Forge Co., 243 Mass. 133, 137 N. E. 169. The proper way to secure review of such ruling is by exception.
[2] A requested ruling, that the court had no jurisdiction on the ground that the district court had imposed no sentence upon the finding of fraud, and that therefore the matter was not properly before the court, was refused. This point affected the jurisdiction of the superior court over the cause. That may be raised at any time. Eaton v. Eaton, 233 Mass. 351, 364, 124 N. E. 37, 5 A. L. R. 1426;Corcoran v. Higgins, 194 Mass. 291, 80 N. E. 231;Devine's Case, 236 Mass. 588, 590,129 N. E. 414. It has been argued in this court. Therefore it must be considered and decided notwithstanding the fact that no exception was saved.
The statutory provisions respecting the making and trial of charges of fraud in poor debtor proceedings are found in G. L. c. 224, § 6, 40, 41, 43. By section 40 it is provided that such-
‘charges shall be considered in the nature of an action at law, to which the defendant or debtor may plead guilty or not guilty, and which the court may thereupon hear and determine.’
By section 43 it is enacted that if upon trial the debtor-
‘is found guilty of any such charge, he shall not benefit by proceedings under this chapter, and may be sentenced to imprisonment for not more than one year.’
The right of appeal is declared in section 41 in these words:
‘A party aggrieved by a judgment rendered under the preceding section may appeal therefrom to the superior court. * * *’
[247 Mass. 186][3][4][5] There is nothing to indicate that ‘judgment’ in section 41 is...
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Jones v. Jones
...court, though not brought here by appeal from the interlocutory order overruling the demurrer or specifically reported. Morse v. O'Hara, 247 Mass. 183, 185, 142 N.E. 40;Board of Assessors v. Suffolk Law School (Mass.) 4 N.E.(2d) 342. The interlocutory order, though not appealed from, is not......
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Keljikian v. Star Brewing Co.
...that he must wait for that stage of the case to arrive, before even claiming an appeal. Notwithstanding what is said in Morse v. O'Hara, 247 Mass. 183, 186, 142 N.E. 40, the ‘judgment’ from which the statute gave an appeal was held not to be the sentence which is the final judgment in a cri......
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Donnelly v. Montague
...from the final judgment, upon which, unless vacated by appeal, execution would issue. Bowler v. Palmer, 2 Gray 553. See Morse v. O'Hara, 247 Mass. 183, 186, 187, 142 N.E. 40;Renado v. Lummus, 205 Mass. 155, 156, 91 N.E. 144. This kind of appeal never fell into the uncertainty and confusion ......
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Conservation Comm'n of Falmouth v. Pacheco, P-777
...of Rev., 383 Mass. 619, 622 (1981) (emphasis added). See Cheney v. Boston & Me. R.R., 227 Mass. 336, 337-338 (1917); Morse v. O'Hara, 247 Mass. 183, 185 (1924); Assessors of Boston v. Suffolk Law Sch., 295 Mass. 489, 495 (1936); Cohn v. Cohn, 310 Mass. 126, 129 (1941); Patry v. Liberty Mobi......
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Keljikian v. Star Brewing Co.
...that he must wait for that stage of the case to arrive, before even claiming an appeal. Notwithstanding what is said in Morse v. O'Hara, 247 Mass. 183, 186, 142 N.E. 40, the ‘judgment’ from which the statute gave an appeal was held not to be the sentence which is the final judgment in a cri......
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Jones v. Jones
...court, though not brought here by appeal from the interlocutory order overruling the demurrer or specifically reported. Morse v. O'Hara, 247 Mass. 183, 185, 142 N.E. 40;Board of Assessors v. Suffolk Law School (Mass.) 4 N.E.(2d) 342. The interlocutory order, though not appealed from, is not......
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Keljikian v. Star Brewing Co.
...that he must wait for that stage of the case to arrive, before even claiming an appeal. Notwithstanding what is said in Morse v. O'Hara, 247 Mass. 183 , 186, the "judgment" from which the statute gave an appeal, was held not to be the sentence which is the final judgment in a criminal case ......
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Board of Assessors of City of Boston v. Suffolk Law School
...the parties at any stage of the proceedings. Cheney v. Boston & Maine Railroad, 227 Mass. 336, 337, 338, 116 N.E. 411; Morse v. O'Hara, 247 Mass. 183, 185, 142 N.E. 40; Lonergan v. American Railway Express Co., 250 Mass. 30, 40, 144 N.E. 756. These principles are applicable to the present c......