Old Colony St. Ry. v. Thomas

• Decision Date: 17 May 1910
• Citation: 205 Mass. 529,91 N.E. 1006
• Parties: OLD COLONY ST. RY. v. THOMAS et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 529

91 N.E. 1006

OLD COLONY ST. RY. v. THOMAS et al. (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

May 17, 1910

COUNSEL

Currier Rollins, Young & Pillsbury, for petitioner.

Harvey H. Pratt, for respondents.

OPINION

KNOWLTON C.J.

These are appeals and exceptions in two cases, brought in the land court for the registration of titles. We will consider first the appeal in each case from the order of the superior court made on January 21, 1910, revoking an order of November 29 1909, that the exceptions be entered in the Supreme Judicial Court on or before January 1, 1910, and in default thereof that they be overruled and the rulings and orders excepted to affirmed, unless the court, for good reason, should extend the time. The respondents having failed to enter the exceptions within the time prescribed, and having entered them afterward without a further order, they were dismissed upon motion by the Supreme Judicial Court. Thereupon the petitioner filed in each case a motion that the final decision be certified to the land court, and the respondents filed a motion that the order of November 29th be revoked, and the time for entering the exceptions be extended. The court denied the former and allowed the latter of these motions, and the petitioner appealed in each case.

The cases were pending in the superior court after the order of the Supreme Judicial Court dismissing the exceptions. No final judgment or order had been entered in the superior court in pursuance of the order of November 29th, and the cases were there for disposition. It was therefore in the power of the superior court to deal with them in any proper way, and to revoke the former order if good reason was shown for so doing. The appeal is not well founded, and the last order of the superior court is affirmed.

In the first of these cases there was a decision in favor of the petitioner and an order for the rigistration of the title in the land court, from which the respondents appealed to the superior court. Issues were framed by the land court for trial in the superior court, as required by the statute. The petitioner filed in the superior court a motion for the dismissal of the appeal, which was allowed, and exceptions were taken from the order of dismissal. The reasons for the motion to dismiss were stated therein as follows:

'First. Because the report of the judge of the land court is not a full report of the facts found by him, so far as they relate to or bear upon any questions involved in this appeal, and does not comply with the requirements of St. 1905, c. 288, and the petitioner is thereby deprived of the benefit of the presumption in its favor which the statute undertakes to secure to it.

'Second. Because the judge of the land court has made no specific finding upon the issues, or either of them framed for this court upon this appeal.

'Third. Because it does not appear that the issues framed for the jury in this court were material to the decision of the land court from which this appeal was taken.

'Fourth. Because there was no trial in the land court upon the facts.

'Fifth. Because it does not appear that the decision of the land court was based upon any disputed issue of fact.

'Sixth. Because it appears that the decision of the land court was based upon a question of law and not of fact.

'Seventh. Because it appears that the decision of the land court was based solely upon an inspection of the record title to the land described in the petition, and involved only the construction of the conveyances and other instruments forming the chain of that title, and that the error, if any, in said decision of the land court, was error of law and not of fact, the remedy for which is by appeal or exceptions to the Supreme Judicial Court, and not by appeal to this court.'

The report of the judge of the land court states briefly the important matters that occurred at the hearing before him, and it is sufficient under the statute. The facts that the respondents had been twice defaulted before him, and that they failed to offer evidence of the matters averred in their answers, are reasons why the report does not deal with the issues in such detail as it otherwise would. The first reason stated in the motion is insufficient.

The judge was not obliged to make specific findings upon the issues framed for the superior court, as it is assumed in the second reason that he was. The issues were not framed until after his findings had been made.

To the third, fourth, fifth, sixth and seventh of the reasons, the answer is that the judge framed issues for the superior court, and this official act establishes prima facie the proposition that they are pertinent and ought to be tried. In this record there is nothing to show that they were not material to the decision of the judge, nor that his decision was not founded in part upon questions of fact. It is to be assumed that all material facts were considered and passed upon in the land court.

In the long and elaborate decision and in the report in the second case there are statements which make it seem probable that these issues are immaterial, and that the answers to them would not affect the decision of the land court in this first case, which, except in the particulars referred to in these issues, is not appealed from. But the decision and the report in that case, although founded in part upon the same facts as the decision in this, are not a part of the record in this first case, and cannot be considered in the decision of it. It follows that the judge was wrong in dismissing this appeal, upon the record before him, and the exception to his order must be sustained.

In the second case a bill of exceptions was filed by the petitioner, founded on the adverse decision of the judge upon its motion in the superior court to prove facts and to have the record amended, and to dismiss the respondents' appeal because it was not entered within the time prescribed by the statute. It appears upon the affidavit of the assistant clerk of the superior court--and the petitioners offered proof of these facts--that the appeal papers, which were to be filed on February 14, 1908, were taken to the house of the assistant clerk in the evening of that day, and handed to him there, and were not taken to the clerk's office until February 15th, when they were marked as entered on February 14th. The principal question raised by these exceptions is whether it is an entry of an appeal in the superior court, within the meaning of the statute, to hand the papers to the clerk of the court, or to any one of the assistant clerks, when he is away from the clerk's office, at any place where he happens to be found within the county. Entries of different appeals might be made in different remote parts of the county at the same time, if the papers were handed to the clerk and to different assistant clerks who were found in these places, and some of them might not appear of record for days afterward, if it happened to suit the convenience of one or more of these officers to remain away for a considerable time. The appeal is to be 'entered within thirty days, * * * and, upon the entry of the appeal, the appellant shall file in the superior court copies of all material papers in the case, certified by the recorder.' Rev. Laws, c. 128, § 13. The appeal is to the superior court, and is to be entered in that court. This plainly appears from the language of this section, from St. 1905, c. 288, and from other parts of the statutes.

What is it to enter an appeal in the superior court and to file all material papers in that court? It cannot be less than to make the appeal and the papers a matter of record in the court. On the...