Reno v. Cotter

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: Reno v. Cotter, 236 Mass. 556, 129 N.E. 300 (Mass. 1921)
• Decision Date: 04 January 1921
• Parties: RENO v. COTTER et al.

236 Mass. 556

129 N.E. 300

RENO

v.COTTER et al.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 4, 1921.

Report from Superior Court, Hampden County; Henry A. King, Judge.

Suit by Conrad Reno against James E. Cotter and others, resulting in decree dismissing the bill. On report to the Supreme Judicial Court. Decree affirmed.Conrad Reno, of Springfield, pro se.

Joseph P. Fagan and James W. McDonald, both of Boston, for defendants.

RUGG, C. J.

This suit in equity was filed February 11, 1915. The record is confused, and it is necessary to state it in some detail. The defendants Cotter and McDonald, who hereafter will be called the defendants, filed separate demurrers. These were heard and on November 9, 1915, without deciding the demurrers, the judge filed what is in form a report to this court of the questions thereby raised. On March 4, 1916, another report was filed by the same judge, wherein it was stated that he ‘made an order sustaining the demurrers,’ and then reported the correctness of his rulings upon certain stipulations. The first report did not conform to R. L. c. 159, § 27, as to reporting interlocutory matters in equity. Doubt well may have arisen in the mind of the judge as to his power to report a demurrer in equity without first deciding it, and hence the second report was made, which on its face showed a decision upon the demurrers. It must be assumed that the first report was in effect superseded by the second, which is more full and conforms to R. L. c. 159, § 27. Two reports cannot be made rightly of the same question and both be outstanding at the same time. By making the second report the first was revoked even though not expressly so stated. On July 24, 1917, the plaintiff filed a motion to amend his complaint, and on July 30 a motion to discharge the reports. On September 11, 1917, more than one and one-half years after the filing of the last report, each defendant filed a motion to discharge the reports for failure seasonably to enter them in the Supreme Judicial Court and for an order affirming the order sustaining the demurrers and for judgment thereon. These three motions were heard together by another judge. In February, 1918, his decision was filed. In it, after denying the plaintiff's motions and after making a finding that no action had been taken looking to the entry of the report in this court, he allowed the defendants' motions that the report be discharged and that judgement be entered for the defendants upon the order sustaining the demurrers. So far as that decision involved a finding of fact, it must stand as final on familiar principles since no evidence is reported.

No formal decree was entered by this judge pursuant to his decision. He filed, however, a signed statement or decision to the effect among other matters that the defendants' motions that the report be discharged were allowed. There is authority to the effect that an order of this nature is equivalent to an interlocutory decree. Nelson Theatre Co. v. Nelson, 216 Mass. 30, and cases collected at page 33, 102 N. E. 926. In connection with the entry of the final decree expressly discharging the report, the report is deprived of any efficacy to bring the case here.

It is plain that the report was discharged rightly, and that neither report is now before us. The lapse of so long a time without action by the plaintiff to enter the report was abundant reason for discharging it. Griffin v. Griffin, 222 Mass. 218, 110 N. E. 296.

It follows that the case is not before us on report.

Numerous motions by each of the parties are printed in the record, together with the decisions of the several judges who made them. No appeal, however, was taken from any interlocutory order or decree. A final decree dismissing the bill was entered, from which the plaintiff appealed. The case never has been referred to a master or heard on its merits. Hence no facts are found. No evidence concerning any interlocutory matter is printed.

The final decree includes numerous matters which had been the subject of interlocutory orders and decrees. These matters included in the final decree are open for consideration. Interlocutory decrees, not appealed from, are open to revision only to the extent that the final decree is affected thereby. R. L. c. 159, § 26; Houle v. Abramson, 210 Mass. 83, 84, 96 N. E. 77;Fay v. Corbett, 233 Mass. 403, 410, 124 N. E. 73.

Motion was filed by the defendants on May 11, 1918, that an order be entered as of a date prior to March 4, 1916, sustaining the defendants' demurrers on the ground that by mistake or oversight an order to that effect did not formally appear of record, although from the report of the judge filed on March 4, 1916, it was apparent that such an order actually was made. This motion was heard by a third judge. He allowed the motion and a decree nunc pro tunc was entered accordingly. It was not essential that this motion be decided by the same judge who made the report. Proper practice permitted it to be heard by a different judge. The superior court is a court of general jurisdiction. The case was pending in the superior court. Any judge of that court sitting for the judicial administration of justice had power to take cognizance of any motion or other matter pending for decision. Catheron v. County of Suffolk, 227 Mass. 598, 602, 116 N. E. 885. These motions were not like a bill of exceptions, motion for new trial, or other step in procedure requiring the personal attention of a particular judge because begun and remaining uncompleted by him. Brooks v. Shaw, 197 Mass. 376, 84 N. E. 110.

The reports, although discharged and hence of no effect so far as concerned bringing before this court for decision the questions there set forth, were still on the files of the superior court, to which resort could be had for any rightful purpose. A report of this kind in equity recognized by the statute becomes a part of the record. Stone v. St. Louis Stamping Co., 156 Mass. 598, 31 N. E. 654. It is not necessary to determine whether under these circumstances resort might be had to a finding of facts or amplified decision filed by the judge in an action at law which speaking strictly are not part of the record. See Cressey v. Cressey, 213 Mass. 191, 99 N. E. 972;Crocker v. U. S., 240 U. S. 74, 78, 36 Sup. Ct. 245, 60 L. Ed. 533, and Parker v. Framingham, 8 Metc. 260, 264. It is apparent from the terms of the report dated March 4, 1916, that the judge signing it had made an order sustaining the demurrers. It is expressly so stated. Such an order might have been oral with the expectation that it would be entered on the docket. It should have been made by an interlocutory decree or separate order. But it was stated in a writing signed by the judge, which was sufficient foundation for the subsequent entry of an interlocutory decree embodying its substance.

The interlocutory decree, reciting that it appeared that an order sustaining the demurrers had been made by the first judge, which by mistake or oversight did not formally appear upon the records, and sustaining the demurrers as of March 3, 1916, so far as it involved a finding of fact, must stand since no evidence is reported. So far as it involves a ruling of law, it was right on the facts recited because it simply made the record of the court conform to the truth. The power of the court was ample in this particular. Waucantuck Mills v. Magee Carpet Co., 225 Mass. 31, 33, 113 N. E. 573;Randall v. Peerless Motor Car Co., 212 Mass. 352, 387, 99 N. E. 221;Farris v. St. Paul's Baptist Church, 220 Mass. 356, 107 N. E. 955; Maggelet's Case, 228 Mass. 57, 63, 116 N. E. 972, L. R. A. 1918F, 864;Hathaway v. Congregation Ohab Shalom, 216 Mass. 539, 542, 104 N. E. 379.

It was within the jurisdiction of the court to enter nunc pro tunc the interlocutory decree sustaining the demurrers. Perkins v. Perkins, 225 Mass. 392, 114 N. E. 713.

The denial of the motion of the plaintiff to set aside this decree and the proceedings antecedent to it presents no question of law.

The result is that as the record stands, as matter of correct practice, the demurrers have been sustained by an interlocutory order. The demurrers were sustained also in the final decree. The name of the judge who ordered the final decree to be entered is not stated explicitly, but apparently was a fourth judge. As has been pointed out, it is of no consequence whether he was the same one who first ordered that the demurrers be...