Niosi v. Leveroni
| Decision Date | 07 January 1931 |
| Citation | 174 N.E. 228,274 Mass. 115 |
| Parties | NIOSI et al. v. LEVERONI et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Suffolk County; Bishop, Judge.
Suit by Peter A. Niosi and others against Frank Leveroni and others. Final decree dismissing the bill was entered, and plaintiffs appealed. From an order dismissing the appeal on motion of defendants, plaintiffs appeal.
Order affirmed, with double costs.
S. T. Lakson, of Boston, for appellants.
J. F. Gadsby, of Boston, for appellees.
This suit in equity was heard in the superior court, the evidence being taken stenographically. The trial judge made a finding and order for the final decree, and in accordance therewith on April 23, 1930, a final decree was entered dismissing the bill. On the same day the plaintiffs appealed from the final decree. On June 9, 1930, the defendants filed a motion to dismiss that appeal on the ground that it had not been entered in this court. Respecting that motion counsel for the plaintiffs filed an affidavit stating, in substance, that on April 7, 1930, he had ordered a transcript of the evidence from the court stenographer which he had not received and that as soon as such transcript was received he would proceed forthwith to prosecute the appeal. The judge found that the facts stated in the affidavit were true and that counsel for the plaintiffs did not within ten days after his appeal give, and had not up to June 10, 1930, given, to the clerk of the superior court an order in writing for the preparation of the papers. The motion to dismiss was allowed. The plaintiffs' appeal from the allowance of this motion presents the point for determination.
The practice regulating the taking of any question of law to the full court was changed by St. 1929, c. 265, § 1, amended G. L. c. 231, § 135. As thus changed the practice is mandatory that the party having the obligation to cause the necessary papers to be printed ‘shall give to the clerk, recorder, register or other appropriate official of the court in which the case is pending, within ten days after the appeal or allowance of the bill of exceptions or the determination by the court in which the questions arose of the form of the transmitting order, an order in writing for the preparation of such papers and copies of papers for transmission to the full court. * * *’ This is an imperative provision. It is an essential preliminary step toward the entry of any case before...
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...v. Picquet, 4 Pick. 465;Bowler v. Palmer, 2 Gray, 553, 555;Romanausky v. Skutulas, 258 Mass. 190, 196, 154 N.E. 856;Niosi v. Leveroni, 274 Mass. 115, 117, 174 N.E. 228;Hubbard v. Southbridge National Bank, Mass., 8 N.E.2d 351;Savage v. McCauley, Mass., 19 N.E.2d 695. See also Slaker v. O'Co......
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...of St. 1931, c. 219 (G. L. [Ter. Ed.] c. 231, § 135), the clerk had the duty of procuring the transcript of evidence. Niosi v. Leveroni, 274 Mass. 115, 174 N.E. 228; Martell v. Moffatt, 276 Mass. 174, 177 N.E. 102. that statute, the clerk was relieved of that duty, and by implication it was......
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...2 Mass. 140 . Swan v. Picquet, 4 Pick. 465. Bowler v. Palmer, 2 Gray, 553, 555. Romanausky v. Skutulas, 258 Mass. 190 , 196. Niosi v. Leveroni, 274 Mass. 115 , 117. Hubbard v. Southbridge National Bank, 297 Mass. 20. Savage v. McCauley, 302 Mass. 457 , 461. See also Slaker v. O'Connor, 278 ......
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