Pollack v. Kelly

• Decision Date: 02 May 1977
• Citation: 372 Mass. 469,362 N.E.2d 525
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 525

362 N.E.2d 525

372 Mass. 469

Malvin M. POLLACK v. Mary KELLY

Supreme Judicial Court of Massachusetts, Essex.

Argued April 6, 1977.

Decided May 2, 1977.

Max Nicholson, Lawrence, for defendant.

Herbert W. Finbury, Haverhill, for plaintiff, submitted a brief.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER, WILKINS and ABRAMS, JJ.

QUIRICO, Justice.

This is an action of contract by which the plaintiff seeks to recover a balance of $970 allegedly for dental services rendered by him to the deendant at various dates in 1972. The action was entered in the Central District Court of Northern Essex, in Haverhill, on March 11, 1974. The plaintiff's declaration stated each date on which he treated the defendant, the nature of the treatment rendered on each date and the amount due therefor, the various payments made by the defendant on account and the date of each payment, and the balance of $970 due. The defendant demurred to the declaration for the several grounds set forth in the margin. ¹ The demurrer was heard by a judge of the District Court on September 27, 1974, and overruled by him on October 4, 1974. The defendant requested a report of that ruling to the Appellate Division of the District Courts, Northern District, which, after hearing the parties, concluded that the plaintiff's declaration was legally sufficient and, on April 14, 1975, ordered the report dismissed.

The case is now before us on the defendant's attempted appeal from the decision and order of the Appellate Division dismissing her report. We conclude, on the basis of the discussion which follows, that the appeal is not properly before us and that it should be dismissed without considering the sufficiency of the plaintiff's declaration.

1. For reasons which we are unable to discern, litigants continue to besiege this court with premature requests for appellate review of interlocutory rulings or orders of trial judges. Clearly it is not because of any failure by this court to restate and apply 'the general rule of practice so early announced, so frequently reiterated and so constantly followed, and so manifestly in the interest of parties litigant and the general public, as the rule that . . . (interlocutory rulings) will not be considered until the case is ripe for final judgment.' Weil v. Boston Elevated Ry., 216 Mass. 545, 549, 104 N.E. 343, 344 (1914). Nor is it because of any suggestion by this court which could be understood to indicate any intention to depart from that rule. On the contrary, '(w)e have consistently rejected attempts to obtain piecemeal appellate review by the full court of interlocutory matters not reported by the judge making the interlocutory ruling, order, or decision, and we have done so without regard to whether the review was sought on the stated basis of statutes (see G.L. c. 231, §§ 117, 118) relating to temporary appellate relief from interlocutory matters, on the basis of the new Massachusetts Rules of Appellate Procedure (see Mass.R.A.P. 6, 365 Mass. 848 (1974)), by way of a complaint requesting the exercise of our power of superintendence under G.L. c. 211, § 3, or by way of a complaint seeking the removal of an action from another court to this court under our power of removal under G.L. c. 211, § 4A.' Kargman v. Superior Court, --- Mass. ---, --- - ---, ^a 357 N.E.2d 300, 303 (1976). To that statement we now add that the result must and will be the same when the route by which appellate review of the interlocutory matter is sought is by the attempted perfecting of an appeal therefrom and its argument in this or any other appellate court before the entry of judgment in the case on the merits. ² A reading of the following decisions will demonstrate the extent to which this court has been needlessly burdened in the last few years by these foredoomed, and therefore futile and unsuccessful, premature attempts to obtain appellate review of interlocutory matters. Cappadona v. Riverside 400 Function Room, Inc., --- Mass. ---, ---, ^b 360 N.E.2d 1048 (1977). Kargman v. Superior Court, --- Mass. ---, --- - ---, ^c 357 N.E.2d 300 (1976). CORBETT V. KARGMAN, --- MASS. ---, 343 N.E.2D 408 (1976)^D. Rollins Environmental Servs. Inc. v. Superior Court, --- Mass. ---, --- - ---, ^e 330 N.E.2d 814 (1975). Albano v. Jordan Marsh Co., --- Mass. ---, --- - ---, ^f 327 N.E.2d 739 (1975). Foreign Auto Import, Inc. v. Renault Northeast, Inc., --- Mass. ---, --- - ---, ^g 326 N.E.2d 888 (1975) Giacobbe v. First Coolidge Corp., --- Mass. ---, --- - ---, ^h 325 N.E.2d 922 (1975). Orasz v. Colonial Tavern, Inc., 365 Mass. 131, 137--140, 310 N.E.2d 311 (1974).

2. Parallel to the development of the basic rule that interlocutory matters are not subject to appellate review until the entire case is ripe for final judgment, and perhaps as a part of the same rule, there also developed a body of law, posited at least in part on statutes, to the effect that an order overruling a demurrer was not subject to appellate review until the case was in all other repsects ripe for final disposition in the trial court. For a history of appeals from orders disposing of demurrers, and in particular the history of statutes relating thereto, see Keljikian v. Star Brewing Co., 303 Mass. 53, 57--61, 20 N.E.2d 465 (1939).

In Bennett v. Clemence, 3 Allen 431 (1862), the plaintiff sought appellate review of an order overruling a part of his demurrer to the defendant's answer. He did so in reliance on Gen.Sts. (1860) c. 114, § 10, which provided, 'A party aggrieved by a judgment founded upon matter of law apparent on the record, in any proceeding, civil or criminal . . . (with exceptions not here material) may appeal therefrom to the supreme judicial court.' The court in Bennett v. Clemence, supra at 432, acknowledged that '(a) judgment overruling or sustaining a demurrer is a judgment founded upon matter of law appearing on the record,' but it nevertheless pointed out that '(i)t has been repeatedly held by this court that questions of law arising in cases pending in . . . (the superior) court cannot be brought here, until the case is finally disposed of there, either by judgment or verdict, and several cases have been sent back on that ground.' The appeal was dismissed.

In Kellogg v. Kimball, 122 Mass. 163, 164 (1877), where the trial judge overruled the defendant's demurrer to two of the three counts in the plaintiff's declaration, the defendant appealed therefrom. The judge ordered the case to trial notwithstanding the appeal. This court said: 'In this state of the pleadings, . . . (t)he court correctly ruled that the case should proceed to trial. The rulings upon the demurrers were interlocutory, and could not be brought to this court for decision until the case had been tried.'

In O'Connell, petitioner, 174 Mass. 253, 262, 53 N.E. 1001, 54 N.E. 558, 559 (1899), this court said, as dictum, 'The order overruling the respondent's demurrer to the charges was not in terms appealed from. If it had been, the appeal could not have been heard in this court until after the decision of the case upon the merits,' citing the Bennett and Kellogg cases, both supra, as authority therefor.

By St. 1918, c. 257, § 432, the statute then applicable to appeals from orders on demurrers, R.L. (1902) c. 173, § 96, was amended to read in pertinent part as follows: 'A party who is aggrieved by any order of the superior court sustaining or overruling a demurrer which alleges that the facts stated in the pleadings demurred to do not in law support or answer the action . . . may appeal therefrom to the supreme judicial court; but . . . no appeal or exception shall be entered in the supreme judicial court until the case is in all other respects ripe for final disposition by the superior court' (emphasis supplied). The addition of the new language underscored above had the effect of 'convert(ing) what was formerly 'a rule of practice established by the court' into a rule of statutory law, compliance with which is a prerequisite to jurisdiction in this court.' Driscoll v. Battista, 311 Mass. 372, 373, 41 N.E.2d 16, 17 (1942). See Allon Textile, Inc. v. Bates, 358 Mass. 526, 528, 265 N.E.2d 598 (1970). Cf. Cotter v. Nathan & Hurst Co., 211 Mass. 31, 33, 97 N.E. 144 (1912). That language continued to be a part of the statute, and of its successor statute, G.L. c. 231, § 96, until July 1, 1974, when § 96 was amended in material respects by St. 1973, c. 1114, § 193, to conform to the new Massachusetts Rules of Civil Procedure, 365 Mass. 730 (1974), and the Massachusetts Rules of Appellate Procedure, 365 Mass. 844 (1974).

Because the order overruling the defendant's demurrer was entered on October 4, 1974, the procedure for appellate review thereof is governed by the new rules. Mass.R.A.P. 1A, 365 Mass. 845 (1974). However, that does not change the result. 'Whether governed by the former law or by the more recent Massachusetts Rules of Civil Procedure and Massachusetts Rules of Appellate Procedure a litigant is not entitled to piecemeal appellate review of unreported ³ interlocutory orders or rulings of a trial judge by the full court of this court or of the Appeals Court.' Albano v. Jordan Marsh Co., --- Mass. ---, ---, ⁱ 327 N.E.2d 739, 741 (1975). Those rules did not change 'the previous settled law that unless a judge making an interlocutory order reports ³ it to an appellate court for review, the order is not subject to appellate review until the case is in all other respects ripe for final disposition in the trial court.' Rollins Environmental Servs. Inc. v. Superior Court, --- Mass. ---, ---, ^j 330 N.E.2d 814, 816 (1975).

The statement by counsel for the defendant in oral argument that he found many decisions by this court granting appellate review of orders sustaining demurrers to declarations but that he found none granting such review of orders overruling demurrers is quite understandable. This court has held in numerous decisions that if an order sustaining the dem...