Robinson v. Donaldson

• Decision Date: 27 February 1925
• Citation: 251 Mass. 334,147 N.E. 679
• Parties: ROBINSON v. DONALDSON et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 334

147 N.E. 679

ROBINSON

v.DONALDSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1925.

Appeal from Superior Court, Suffolk County; Marcus Morton, Judge.

Suit by Solomon Robinson against Isabelle M. Donaldson, formerly known as Isabelle M. Dowling, and the Washington Theater, Inc., to reach and apply, in payment of damages alleged to be recoverable under lease from principal defendant, property in hands of other defendant. From decree of dismissal, plaintiff appeals, and from order denying motion to dismiss plaintiff's appeal, defendant appeals. Plaintiff's appeal dismissed for want of prosecution.

W. H. Garland, of Boston, for appellant.

Asa P. French, of Boston, for appellee.

RUGG, C. J.

This is a suit to reach and apply, in payment of damages alleged to be recoverable under a lease from the principal defendant, Isabelle M. Donaldson, to the plaintiff, property in the hands of the other defendant. G. L. c. 214, § 3, cl. 7. See H. G. Kilbourne Co. v. Standard Stamp Affixer Co., 216 Mass. 118, 103 N. E. 469.

The case was heard before a judge of the superior court, who made a finding for the defendant on September 5, 1922. A final decree dismissing the plaintiff's bill was entered on June 11, 1923. From that decree the plaintiff on June 14, 1923, appealed and requested a report of the material facts found by the judge. G. L. c. 214, § 23. The judge filed such report with his rulings on evidence on August 13, 1923. The defendant on January 7, 1924, filed in the superior court under G. L. c. 231, a motion to dismiss the appeal for want of prosecution, in that the appeal had not been entered in compliance with G. L. c. 214, § 19. That motion was heard on affidavits filed by the attorneys for the respective parties. That in behalf of the plaintiff sets out facts as to delay in getting and inaccuracies in the transcript of evidence heard at the trial, but avers that it was received ‘about six months after the trial,’ that is to say, at latest by March, 1923. An extract from a letter of the attorney for the defendant to the judge is inserted in the affidavit of the attorney for the plaintiff, of this tenor:

‘If, as I understand was agreed, the testimony taken by the commissioner is to be reported, though in abbreviated form, and the situation being that at the close of the plaintiff's evidence and offers of proof you ruled that upon a proper construction of the lease, and upon all the evidence offered by him, he was not entitled to recover, I see no occasion for an elaborate, nor indeed any, finding of fact. The case will then be presented fairly, squarely and succinctly to the Supreme Court whether or not the plaintiff introduced any evidence upon which, under the rules of law, damages could be awarded him.’

The affidavit continues:

‘Mr. French submitted, however, certain requests for findings;and on August 3 [13], 1923, the court filed his findings and rulings as before stated. I was then and still am of the opinion that the findings and rulings, together with the pleadings were sufficient to present all questions of law involved in the case.’

On the defendant's motion to dismiss the appeal the order was:

‘Motion allowed after hearing unless papers are prepared and entered in the full court on or before March 3, 1924.’

The question is whether that order can be supported on the affidavits.

The record on the plaintiff's appeal as printed contains simply the bill, answer, finding, report of facts and rulings on evidence made by the judge, and the appeal. No transcript of evidence is printed. It covers a little less than nine printed pages.

The case was ripe for final...