Nelson v. Bailey

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

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.

[22 N.E.2d 118]

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 intended

[22 N.E.2d 119]

to 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...