Mulrey v. Carberry

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: KNOWLTON
• Citation: 204 Mass. 378,90 N.E. 576
• Parties: MULREY et al. v. CARBERRY.
• Decision Date: 08 January 1910

204 Mass. 378
90 N.E. 576

MULREY et al.
v.
CARBERRY.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 8, 1910.

Appeal from Superior Court, Suffolk County; Jabez Fox, Judge.

Petition for leave to file a bill of review by Mary E. Mulrey and others against Anna M. Carberry. From a decree dismissing the petition, plaintiffs appeal. Reversed, and petitioners permitted to bring bill of review.

The petition alleged that plaintiffs were unable to present the entire evidence to the Supreme Judicial Court, because Richardson, the assistant of the stenographer appointed to take the evidence, took part of the evidence at the second hearing, and that petitioners were not acquainted with either stenographers, and that it was the custom, when a commissioner was appointed to report the evidence, to have it taken by an assistant at times.

[204 Mass. 382]P. H. Kelley, for appellants.

John F. Cronin and Chas. H. Cronin, for respondent.

[204 Mass. 378]KNOWLTON, C. J.

This is an appeal from a final decree, dismissing the plaintiffs' petition for leave to file a bill of review. The decree recites an agreement of the respondent that the allegations of fact in the petition might be taken to be true for the purposes of the hearing. The original case which the plaintiffs seek to review, as it appeared in the record then before us, is reported in 192 Mass. 547, 78 N. E. 551.

By the allegations of the present petition it appears that the plaintiffs in the original suit brought a bill to obtain a conveyance of land which had belonged to their grandfather, Michael [204 Mass. 379]Mulrey, which their uncle Timothy D. Mulrey, as administrator of his father's estate, had sold, by leave of the probate court, for the payment of debts, upon a representation of the insolvency of the estate, which representation they alleged to have been fraudulent. After the sale, the purchaser conveyed the property back to the administrator, and he held it until his death, when it passed under his will to the defendants, four of his children. The plaintiffs alleged that all of these proceedings were in fraud of the heirs of Michael Mulrey. The conveyance by the administrator was in 1879. One of the defendants died while the suit was pending, and his interest as devisee descended to his heirs at law, one of whom was his brother, John R. Mulrey. He was not one of the devisees, and was not an original party to the suit. There was an order for a decree dismissing the bill as to the plaintiff

[90 N.E. 577]

Manning, and sustaining it in favor of the plaintiff Carberry, and this order was accompanied by a memorandum, showing that a conveyance should be made by the three surviving defendants, Mary E, Mulrey, Elizabeth D. Mulrey and Catherine A. Mulrey, and by the said John R. Mulrey and his wife, Maria O. Mulrey. Thereupon, before the entry of any decree, John R. Mulrey filed a petition, setting forth that he was not a party to the suit, and had never been heard, and asking to be admitted as a party defendant, and to be permitted to file pleadings, and to be heard in his defense. This petition was granted, and he appeared and filed an answer, which was substantially the same in its grounds of defense as that filed by the other defendants. Then a motion was filed to vacate the order for a decree. This motion was allowed as to that part of the decree that related to the defendant John R. Mulrey, and disallowed as to that part which related to the other defendants. A hearing was then had, and the defense of John R. Mulrey was sustained, and a decree entered dismissing the bill as to him. As against the other defendants, a decree for the plaintiff Carberry was entered, requiring that they convey to her the one-third of the estate which had been conveyed to their father and devised to them and their deceased brother, the former defendant, Thaddeus F. Mulrey, notwithstanding that a part of the share of this brother had descended upon his death to John R. Mulrey. No appeal was taken from the decree in favor of [204 Mass. 380]John R. Mulrey, but the other defendants appealed from the decree against them. One Murray, a stenographer, had been appointed a commissioner to take the...