Plaisted v. Cooke
| Decision Date | 19 March 1902 |
| Parties | PLAISTED v. COOKE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Wm P. Hale, for plaintiff.
The record discloses proceedings in two cases, a so-called bill of rereview, and also the pleadings and certain orders or decrees, with appeals from the same, in another case,--we presume that with regard to which the review was sought. The respondents did not see fit to submit an argument but treated the whole proceeding as frivolous. The plaintiff took the position that both cases were before us. In the original cause an order was made on June 1, 1900, that the bill be dismissed for want of prosecution unless the master's report should be filed on or before Jan. 1, 1901. On February 28, 1901, no further decree having been made, so far as appears by the record before us, a motion was made to extend the time allowed by the order of June, 1900. This was denied and the plaintiff appealed. Another motion or petition was filed, it would seem at a later day, that the June decree be vacated or modified, and this also was denied 'without prejudice.' An appeal was taken, and the court was asked to report the facts. This was not done,--we presume because the Superior Court assumed that the bill was dismissed and that the case was out of court so that it was beyond its power to deal with the matter, although we notice that the petition was denied, not dismissed.
If, as we understand, there has been no decree dismissing the bill subsequent to the anticipatory decree nisi, we are of opinion that the bill is still in court, and that a further decree was necessary to end the case. The meaning of the decree of June 1, 1900, as was said by the Lord Chancellor with regard to a foreclosure decree, was merely that the court would dismiss the bill in a certain event at a certain time. Ford v. Wastell, 2 Phil. Ch. 591, 593. The English practice in similar cases requires a further decree, and it seems to us that that course is desirable in order to avoid the risk of injustice. Stevens v. Praed, 2 Cox, Ch. 374; 2 Daniell, Ch. Prac. (5th Ed.) 997-999. See Railroad Co. v. Fosdick, 106 U.S. 47, 69, 27 L.Ed. 47. Even the entry of 'Bill dismissed' on the docket has been held by this court to be merely an order for a final decree. Merrill v. Beckwith, 168 Mass. 72, 46 N.E. 400.
As there is no final decree in the original cause it follows that the so-called bill of review was brought prematurely and must be dismissed for that reason without going further. It follows also that the appeals in the interlocutory orders, if they are before us, must be dismissed as prematurely,...
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...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......
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