Rines v. Clerk of Courts for Norfolk County

• Decision Date: 18 April 1955
• Citation: 126 N.E.2d 124,332 Mass. 527
• Parties: David RINES, administrator, et al. v. CLERK OF the COURTS FOR the COUNTY OF NORFOLK and the Justices of the Superior Court.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 124

126 N.E.2d 124

332 Mass. 527

David RINES, administrator, et al. v. CLERK OF the COURTS FOR the COUNTY OF NORFOLK and the Justices of the Superior Court.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Feb. 8, 1955.

Decided April 18, 1955.

Lester W. Cooch, Boston, David Rines, Boston, with him, for petitioner.

Harris A. Reynolds, Asst. Atty. Gen., for respondents.

Before QUA, C. J., and LUMMUS, WILKINS and COUNIHAN, JJ.

COUNIHAN, Justice.

This is a petition by David Rines as administrator and individually (hereinafter called the petitioner) for a writ of mandamus to direct the justices of the Superior Court to vacate, set aside, and annul an order entered on January 20, 1954. ¹ by one of the judges of that court that no more papers be received or docketed in sixteen tort actions hereinafter referred to, and to direct the judge who entered the order to disqualify himself from further participation in any matters arising out of said actions. The petition also seeks to require and direct the clerk of the courts to receive, file, and docket certain papers which the petitioner alleges are relevant to preserve exceptions to the entry of such order in said tort actions. The respondents filed identical demurrers the first ground of which is set forth in the margin. ² The demurrers were sustained by the single justice after hearing. The case is here upon exceptions of the petitioner to the action of the single justice. There was no error.

This petition arises out of proceedings in connection with the trial of sixteen tort actions begun by the petitioner in the Superior Court in 1945 to recover damages for the conscious suffering and death of Lucy L. Rines, his wife. The tort actions were grounded upon negligence in the care and treatment of his wife by certain doctors, nurses, and a hospital. The tort actions were tried together in 1948 before a judge and jury. The record is not entirely clear but it appears that the jury returned verdicts for the plaintiff in two of the cases, and that verdicts were entered for the defendants in the other cases by order of the judge.

During the years which followed the petitioner filed four different bills of exceptions in the Superior Court. They are titled and numbered for convenience in the order of their filing: (1) plaintiff's consolidated bill of exceptions, (2) plaintiff's substitute consolidated bill of exceptions, (3) plaintiff's second substitute consolidated bill of exceptions, and (4) plaintiff's amended second substitute consolidated bill of exceptions. None of the bills of exceptions has ever been before us except upon a petition to establish the truth of the exceptions therein. While the allowance of these bills of exceptions was pending, the judge on motion granted a new trial of the actions in which there were verdicts for the plaintiff and these actions are now pending in the Superior Court.

Since the trial more than seven years ago proceedings arising out of the tort actions have been before us in one form or another at least eleven times.

Cases Nos. 11207 and 11208 on the docket of this court were petitions to establish the truth of exceptions to orders of the judge allowing motions for new trials in the two tort actions in which there were verdicts for the plaintiff. These petitions were filed on July 10, 1952, and after hearing were dismissed by order of the full court on October 10, 1952, on the ground that the exceptions did not appear to be meritorious.

Failing in this the petitioner filed a petition for a writ of mandamus and a petition for a writ of certiorari to vacate, set aside, and annul the orders allowing the motions for new trials in those cases. After a hearing these petitions were dismissed. They are reported in Rines v. Justices of the Superior Court, 330 Mass. 368, 113 N.E.2d 817. Appeals were dismissed by the Supreme Court of the United States for want of a substantial Federal question. 346 U.S. 919, 74 S.Ct. 309, 98 L.Ed. 414, rehearing denied 347 U.S. 908, 74 S.Ct. 426, 98 L.Ed. 1066.

Cases Nos. 11398 and 11399 on the docket of this court were petitions to establish the truth of exceptions contained in bill numbered 3 and in bill numbered 4. G.L.(Ter.Ed.) c. 231, § 117. After a hearing by the full court the petitions were dismissed by order of the full court on March 22, 1954. ³ Two other petitions seeking to establish the truth of exceptions contained in bill numbered 1 and in bill numbered 3 were heard and dismissed. They are reported in Petition of Rines, 331 Mass. 714, 122 N.E.2d 364.

Bill numbered 2 has never been before us because it never has been allowed by the judge and no petition to establish the truth of those exceptions has ever been filed. The time provided for filing such a petition has long since expired. Rule 22 of the Rules for the Regulation of Practice before the Full Court (1952), 328 Mass. 701-702.

Case No. 11458 on the docket of this court was a petition to establish the petitioner's exception to the denial of an order of notice by the single justice on a petition for a writ of mandamus directing the judge to allow or disallow bill numbered 3, and to rule upon bill numbered 4. It also sought to require the judge to disqualify himself from further participation in any matters arising out of the tort actions. This petition was argued at the March sitting of the full court and was dismissed by order of the full court on April 13, 1955.

Then we come to the case at bar, which is No. 11495 on the docket of this court and which was argued with case No. 11508 at the February sitting. Case No. 11508 will be dealt with in a separate opinion overruling exceptions to the denial of petitions to vacate judgments. 126 N.E.2d 127.

The petition in the case under consideration contains thirty-three allegations, most of them reciting facts which led to the issuance of the order of January 20, 1954. While the bills of exceptions were pending, the judge on December 28, 1953, allowed motions to dismiss all of the bills of exceptions. Six motions relating to some of the tort actions were filed by the petitioner and were denied by the judge on December 28, 1953. On January 4, 1954, the petitioner filed written claims of exceptions, and on January 18, 1954, he filed ten bills of exceptions in relation to these acts of the judge. After the issuance of the order that no more papers be received or filed the petitioner attempted to file innumerable motions, bills of exceptions, and affidavits, none of which was received by the clerk of the courts.

The order of the judge about which the petitioner complains was entered in the absence of the petitioner on January 20, 1954, and the petitioner received notice of it on January 25, 1954. On the same day the petitioner seasonably sought to file with the clerk of the courts sixteen claims of exceptions to the entry of the order which the clerk of the courts refused to accept because of said order. On January 26, 1954, the petitioner presented to the judge in person a motion in each action relating to the entry of this order. He requested the judge to allow such motions or if denied...