Murphy v. Moore
| Decision Date | 04 December 1917 |
| Citation | 117 N.E. 918,228 Mass. 565 |
| Parties | MURPHY v. MOORE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Bristol County; Robert F. Raymond, Judge.
Suit by Cornelius D. Murphy against Margaret J. Moore, individually, and as administratrix of the estate of James F. Moore, deceased, and Bertha L. Moore. From the decree, defendants appeal. Decree affirmed.
Ralph L. Theller, of New Bedford, for appellants.
E. D. Stetson, Gerrett Geils, Jr., and E. E. Clarke, all of New Bedford, for appellee.
The plaintiff, in April, 1906, mortgaged for the sum of $5,000 certain personal property to James F. Moore. Moore died intestate December 27, 1908, and his widow Margaret J. Moore, the administratrix of his estate, is one of the defendants in this suit; the other defendant, Bertha L. Moore, is his daughter and sole heir. The plaintiff brings this bill for the discharge of the mortgage, contending that it was given to James F. Moore to secure his indorsement and that of Mrs. Moore on the plaintiff's promissory notes amounting to $1,400, which notes have now been paid. The defendants claim that the plaintiff and Moore were partners and that the mortgage was given to secure the interest of Moore in the partnership; they have filed a cross-bill praying for a settlement of the partnership affairs.
The case was referred to a master who found there was no partnership, that the mortgage was given to secure the indorsement on promissory notes amounting to $1,400 which were paid before 1908, ‘that one purpose of the mortgage was to ward off possible attachments,’ and that the mortgage was written for an amount in excess of the liabilities to ‘prevent attachments of future creditors.’ The defendants filed exceptions to the master's report. A decree was entered directing the defendants to execute and deliver a discharge of the mortgage, and dismissing the defendants' cross-bill.
After the master had prepared a draft copy of his report, he notified counsel of the time and place to attend and hear the same, and suggest such alterations as they thought proper. A hearing was held on October 2 and October 3, 1916; and on October 6, 1916, the master settled the draft of his report, gave notice thereof to counsel and furnished them with a copy. On October 19, more than five days after the draft of the report was settled and counsel notified, the defendants' counsel brought in the written objections thereto.
As the defendants failed to comply with rule 31, regulating the practice of equity, allowing five days for bringing in the objections, their exceptions are not before us. Smedley v. Johnson, 196 Mass. 316, 82 N. E. 21;Ball v. Allen, 216 Mass. 469, 103 N. E. 928, Ann. Cas. 1917A, 1248. The fact that the defendants' motion of October 10 for an extension of time for filing the report was allowed and the time extended to October 23, 1916, does not help them; the report was settled October 6, and while exceptions need not, under the rule, be filed until fifteen days after the report is filed, the objections must be brought in within five days after the report is settled. This was not done and the extension of time for filing the report does not excuse the defendants.
We may add that we have considered all of the defendants'...
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