Nelson v. Bailey

• Decision Date: 07 July 1939
• Citation: 22 N.E.2d 116,303 Mass. 522
• Parties: NELSON v. BAILEY et al. BAILEY v. NELSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

303 Mass. 522

22 N.E.2d 116

NELSON

v.BAILEY et al.

BAILEY

v.NELSON.

Supreme Judicial Court of Massachusetts, Norfolk.

July 7, 1939.

Suit by Chester W. Nelson against Charles H. H. Bailey and Harrison W. Bailey, to establish a trust in land and for other relief. From unsatisfactory interlocutory decrees and a final decree for plaintiff, both defendants appeal, and Charles H. H. Bailey appeals from a final decree dismissing his ‘petition for review.’

Interlocutory decrees affirmed, final decree, as modified, affirmed, and final decree dismissing bill of review affirmed.Appeals from Superior Court, Norfolk County; Greenhalge and Hurley, judges.

J. B. Abrams and H. I. Klarfeld, both of Boston, for Nelson.

Gilbert W. Cox and Horace T. Cahill, both of Boston, for defendants.

LUMMUS, Justice.

After a final decree in favor of the plaintiff, entered July 25, 1938, the defendants appealed on August 9, 1938, and thereby brought the propriety of that decree before us. On August 23, 1938, Charles H. H. Bailey, one of the defendants, filed as a separate suit what he called a ‘petition for review,’ in which he complained of alleged ‘errors and inconsistencies' in the final decree, claimed a balance of expenditures over receipts in the management of real estate found to belong to the plaintiff and another defendant in the original case, and ordered conveyed to them, amounting to $4,035.68, and prayed that the final decree be vacated, reviewed, modified and amended. From the denial of this ‘petition’ on October 18, 1938. Charles H. H. Bailey appealed.

Apart from appeal, and certain instances of summary amendment which are inapplicable to the present case (Hyde Park Savings Bank v. Davankoskas, Mass., 11 N.E.2d 3), a final decree can be reviewed or set aside only upon a bill of review. Clapp v. Thaxter, 7 Gray 384;Thompson v. Goulding, 5 Allen 81, 82;Morgan v. Steele, 242 Mass. 217, 136 N.E. 77;Sullivan v. Sullivan, 266 Mass. 228, 229, 165 N.E. 89;McLaughlin v.Feerick, 276 Mass. 180, 182, 176 N.E. 779;Kingsley v. Fall River, 280 Mass. 395, 398, 182 N.E. 841. The present ‘petition’ can have standing only to the extent that it is in substance a bill of review. It alleges no new evidence or new matter arising or coming to light after the entry of final decree. Boston & Maine Railroad v. Town of Greenfield, 253 Mass. 391, 397, 149 N.E. 322;Handy v. Miner, 265 Mass. 226, 227, 163 N.E. 881;Counelis v. Anderson Mass., 12 N.E.2d 838. So far as its meagre allegations (Nashua & Lowell Railroad Corp. v. Boston & Lowell Railroad Corp., 169 Mass. 157, 161, 162, 47 N.E. 606) enable us to classify it, we think it was intendedto be a bill of review for error of law appearing on the face of the record. Evans v. Hamlin, 164 Mass. 239, 41 N.E. 267;Nashua & Lowell Railroad Corp. v. Boston & Lowell Railroad Corp., 169 Mass. 157, 158, 47 N.E. 606.

Such a bill of review is comparable to a writ of error at law. It is inferior in value to an appeal, for it reaches only errors of law apparent upon the record, and does not reach errors in conclusions of fact from the evidence even though the evidence has been made part of the record. Nashua & Lowell Railroad Corp. v. Boston & Lowell Railroad Corp., 169 Mass. 157, 161, 47 N.E. 606;Handy v. Miner, 265 Mass. 226, 228, 163 N.E. 881;Lewis v. National Shawmut Bank of Boston, Mass., 21 N.E.2d 254.Buffington v. Harvey, 95 U.S. 99, 24 L.Ed. 381;Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 7, 8 S.Ct. 811, 31 L.Ed. 629;Scotten v. Littlefield, 235 U.S. 407, 411, 35 S.Ct. 125, 59 L.Ed. 289.

In the Federal courts the time for bringing a bill of review of this class has been limited by judicial decision to the statutory time allowed for an appeal (Central Trust Co. v. Grant Locomotive Works, 135 U.S. 207, 227, 10 S.Ct. 736, 34 L.Ed. 97;McDonald v. Whitney, C.C., 39 F. 466;Copeland v. Bruning, C.C., 104 F. 169;Hendryx v. Perkins, 1 Cir., 114 F. 801, 804;Continental Oil Co. v. Osage Oil & Refining Co., 10 Cir., 69 F.2d 19, 24), the alternative remedy. Osborne v. San Diego Land & Town Co., 178 U.S. 22, 32, 20 S.Ct. 860, 44 L.Ed. 961.

Before the entry of final decree, there is no need and no room for a bill of review, because the case remains fully within the control of the judge, who may grant a rehearing if justice requires one. Plaisted v. Cooke, 181 Mass. 118, 63 N.E. 132;John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 88, 42 S.Ct. 196, 66 L.Ed. 475;Gerrish v. Black, 109 Mass. 474, 477.Kevorkian v. Moors, Mass., 12 N.E.2d 111. During the pendency of an appeal from a final decree, as in the present case, a different reason prevents the prosecution of a bill of review.

Though a bill of review is filed, entitled and entered as a new and separate case, in which process issues for service on the defendants in the bill of review (Home Street Railway Co. v. Lincoln, 8 Cir., 162 F. 133, 138; see also Lynn Gas & Electric Co. v. Creditors' National Clearing House, 235 Mass. 114, 126 N.E. 364), it is nevertheless such a direct mode of attack upon the earlier final decree in the original case that it can be brought only in the court in which that case and that decree remain of record. Nashua & Lowell Railroad Corp. v. Boston & Lowell Railroad Corp., 169 Mass. 157, 161, 47 N.E. 606;Duffy v. Hogan, 203 Mass. 397, 405, 89 N.E. 630; Barrow v. Hunton, 99 U.S. 80, 82, 83, 25 L.Ed. 407;Arrowsmith v. Gleason, 129 U.S. 86, 9 S.Ct. 237, 32 L.Ed. 630;Marshall v. Holmes, 141 U.S. 589, 12 S.Ct. 62, 35 L.Ed. 870;Dowagiac Mfg. Co. v. McSherry Mfg. Co., 6 Cir., 155 F. 524, 528. But an appeal from a final decree, when entered in this court, vacates that decree and transfers the case to this court. G.L. (1921) c. 231, § 135; G.L.(Ter.Ed.) c. 231, § 135; Wright v. Wright, 13 Allen 207, 209;Carilli v. Hersey, Mass., 20 N.E.2d 492;Burlingame v. Bartlett, 161 Mass. 593, 595, 37 N.E. 748;Credit Company Limited v. Arkansas Central Railway Co., 128 U.S. 258, 9 S.Ct. 107, 32 L.Ed. 448;Aspen Mining & Smelting Co. v. Billigs, 150 U.S. 31, 35, 14 S.Ct. 4, 37 L.Ed. 986;Omaha Electric Light & Power Co. v. Omaha, 8 Cir., 216 F. 848, 855;Parker v. New England Oil Corp., D.C., 15 F.2d 236, 238. A bill will not lie to review, in a court where the case has ceased to exist, a final decree in it which has ceased to have force. The judge was right in dismissing the ‘petition,’ treating it as a bill of review. Nashua & Lowell Railroad Corp. v. Boston & Lowell Railroad Corp., 169 Mass. 157, 162, 47 N.E. 606;Ensminger v. Powers, 108 U.S. 292, 302, 303, 2 S.Ct. 643, 27 L.Ed. 732;Pacific Railroad of Missouri v. Missouri Pacific Railway Co., 111 U.S. 505, 520, 4 S.Ct. 583, 28 L.Ed. 498;Kimberly v. Arms, C.C., 40 F. 548;First National Bank of Miles City v. State National Bank of Miles City, 9 Cir., 131 F. 430.Dowagiac Mfg. Co. v. McSherry Mfg. Co., 6 Cir., 155 F. 524, 527, 528;In re Brown, D.C., 213 F. 701, affirmed 2 Cir., 213 F. 705;Id., 235 U.S. 407, 35 S.Ct. 125,59 S.Ct. 289.

We have left for consideration the appeal from the final decree.

The question in this case is not, as the defendants contend, whether a resulting trust arose in favor of the partnership. The case is one of constructive trust. The plaintiff and Harrison W. Balley as partners were fiduciaries with relation to each other. Charles H. H. Bailey was found to be a mere ‘straw’ or agent for his son Harrison W. Bailey in taking in his own name the title to the real estate in question, and his status was not changed by his advance of the necessary money as a loan to his son. The case stands as it would have stood if the partner Harrison W. Bailey himself had taken title to the real estate in his own name and for his own benefit while pretending to the plaintiff that the real estate was being bought for and in the name of the partnership. The real estate was held from the beginning upon a constructive trust for the partnership, as the final decree declared. Holmes v. Darling, 213 Mass. 303, 100 N.E. 611;Lurie v. Pinanski, 215 Mass. 229, 102 N.E. 629;Arnold v. Maxwell, 223 Mass. 47, 111 N.E. 687;Deutschman v. Dwyer, 223 Mass. 261, 111 N.E. 877;H. C. Girard Co. v. Lamoureux, 227 Mass. 277, 116 N.E. 572;Cann v. Barry, Mass., 199 N.E. 905; Id., Mass., 10 N.E.2d 88.

The provision in the final decree ‘That the defendant Charles H. H. Bailey shall account to the receiver for all rents and profits derived from the real estate * * * for the period of time that said real estate has been standing in the name of Charles H. H. Bailey’ enables him to obtain a decree against the partnership for the balance of expenditures over receipts which exists according to his contention. An accounting involves the possibility of affirmative relief to either party. Goldthwait v. Day, 149 Mass. 185, 21 N.E. 359;Zuckernik v....