Reardon v. Cummings

• Decision Date: 01 January 1908
• Citation: 197 Mass. 128,83 N.E. 361
• Parties: REARDON v. CUMMINGS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 128

83 N.E. 361

REARDON v. CUMMINGS.

Supreme Judicial Court of Massachusetts, Middlesex.

January 1, 1908

COUNSEL

Joseph Cummings, pro se.

Frederick W. Dallinger and Edward A. Counihan, Jr., for appellee.

OPINION

KNOWLTON C.J.

A creditor of an insolvent estate of a deceased person presented his claim before commissioners, and appealed from their report to the probate court disallowing a part of it. He duly claimed his appeal and gave proper notice thereof at the probate court as required by Rev. Laws, c. 142, § 12. He entered his appeal in the superior court and paid the clerk the entry fee before the time for entry prescribed by this section. The first question before us is whether the appeal should have been dismissed because the entry was made too soon. This question has never before been considered by this court, although there have been decisions that the court has no jurisdiction to permit the entry of an appeal or other suit, after the end of the term, while terms were held, or after the return day next following the day on which the case should have been entered, since terms were abolished. Keenan v. Knight, 9 Allen, 257; Dudley v Keith, 153 Mass. 104, 26 N.E. 442. By St. 1885, p. 890 c. 384, terms ceased to be held, and the first Monday of each month was made a return day for writs and other processes, and for the entry of appeals in the superior court and the Supreme Judicial Court. With the exception of Sundays and legal holidays, the courts are open for business at all times.

In National Bank of Commerce v. City of New Bedford, 175 Mass. 257, 56 N.E. 288, the court said, referring to the rule forbidding entries after the return day next following the time prescribed for the entry: 'It does not seem to us that the same strictness should be extended to entries made too soon, when the right to enter is outstanding and a proper entry could be made if the party had notice that the letter of the law was insisted upon.'

In a case like the present, where the party has procured and furnished to the clerk the proper copies, and has paid the entry fee and has directed an entry before the day on which the statute provides that it shall be made, and the clerk makes an entry, so that on the appointed day everything has been done and the record shows that everything has been done that ought to be done to make a proper entry on that day, we are of opinion that the entry should be treated as made on that day within the meaning of this statute. That which has been done prematurely, which appears of record in perfect form for an entry on that day, except that it was done sooner than was required, should be treated as taking effect on that day. We are of opinion that the appellant from the superior court could not complain that the appeal was not properly entered.

Under Rev. Laws, c. 142, § 13, the appellant from the probate court should have filed 'a statement in writing of his claim setting forth briefly and distinctly all the material facts which would be necessary in a declaration for the same cause of action.' He failed to do this and was permitted upon motion...