Romanausky v. Skutulas

• Decision Date: 07 January 1927
• Citation: 154 N.E. 856,258 Mass. 190
• Parties: ROMANAUSKY v. SKUTULAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

258 Mass. 190

154 N.E. 856

ROMANAUSKY

v.SKUTULAS.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1927.

Appeal from Superior Court, Suffolk County; J. D. McLaughlin, Judge.

Suit in equity by Michael Romanausky against Annie Skutulas to set aside a deed. From a final decree, ordering the bill dismissed, and from an order of the superior court dismissing his appeal, plaintiff appeals, and petitions to establish exceptions. Order dismissing appeal affirmed. Appeal entered in the Supreme Judicial Court dismissed. Petition to establish exceptions dismissed.C. W. Lavers, of Boston, for appellant.

F. W. Mansfield, of Boston, for appellee.

RUGG, C. J.

This suit in equity was brought to set aside a deed alleged to have been procured from the plaintiff by the fraud of the defendant. The case was tried before a judge of the superior court, who made in writing findings of fact, covering nearly three printed pages of the record, and who ordered the bill dismissed. That was filed on January 2, 1925. Final decree dismissing the bill was entered on January 22, 1925. The plaintiff filed on January 23, 1925, request to report to full court the material facts. This was rightly construed by the superior court as a request under G. L. c. 214, § 23. This request was not called to the attention of the judge until April 11, 1925, when he filed a statement that he reported them to be as stated in the findings of fact filed by him on January 2, 1925.

[2][3] The voluntary filing of findings of fact by the trial judge without request had the same effect as findings of fact filed pursuant to G. L. c. 214, § 23; Cohen v. Nagle, 190 Mass. 4, 5, 76 N. E. 276,2 L. R. A. (N. S.) 964, 5 Ann. Cas, 553;Boston Safe Deposit & Trust Co. v. Wickham, 254 Mass. 471, 150 N. E. 223. The affirmation of these findings in response to specific request under the statute showed that on reflection they were regarded as complete. The plaintiff on February 9, 1925, appealed from the final decree. The case not having been entered in the full court, the defendant on April 3, 1925, filed a motion to dismiss the appeal for want of prosecution. G. L. c. 214, § 19. This motion was denied by an order made on April 13, 1925, on the ground that the motion to report material facts had not been passed upon until April 11, 1925, but it was ordered that the plaintiff's appeal be forthwith entered.

[4] From the denial of this motion the defendant appealed. Such appeal was from an order interlocutory and not final in nature and could not be heard by the full court until the appeal from the final decree was entered. Hutchins v. Nickerson, 212 Mass. 118, 120, 98 N. E. 791;Churchill v. Churchill, 239 Mass. 443, 445, 132 N. E. 185;McCracken's Case, 251 Mass. 347, 350, 146 N. E. 904. See Weil v. Boston Elevated Railway, 216 Mass. 545, 104 N. E. 343. The filing of such appeal by the defendant did not enlarge in any particular the rights of the plaintiff nor diminish his obligations to proceed to perfect his own appeal from the final decree. There is nothing whatever to the contrary in Humphrey's Case, 226 Mass. 143, 115 N. E. 253.

[5] On April 16, 1925, the plaintiff filed what is entitled ‘Plaintiff's Exceptions to Report of Material Facts under Chapter 214, Section 23, Gen. Laws.’ If these be treated on their merits, there is no merit in any of them. The report under the statute is ‘in the nature of an extension of the record is the form of a statement in writing of that which was in the mind of the judge when his decision was made.’ Worcester v. Lakeside Manuf. Co., 174 Mass. 299, 300, 54 N. E. 833, 834.

[6][7] Efforts to abbreviate the evidence were made between counsel, but no abbreviated report was printed and on December 7, 1925, the plaintiff's appeal was dismissed by the superior court for want of prosecution. From an order to that effect the plaintiff appealed. His appeal was not entered in this court until July 6, 1926. It is manifest that dismissal of the appeal on December 7, 1925, was right. It is equally manifest that appeal from the denial of that motion was not entered seasonably in this court. In neither instance was there compliance with the mandate of G. L. c. 214, § 19, that such appeal be entered ‘forthwith.’ Bentley v. Ward, 116 Mass. 333;Griffin v. Griffin, 222 Mass. 218, 110 N. E. 296;Robinson v. Donaldson, 251 Mass. 334, 147 N. E. 679;Mazzuchelli v. Seretto, 254 Mass. 159, 149 N. E. 707;Crawford v. Robeson, 254 Mass. 163, 149 N. E. 707.

The plaintiff rightly and frankly concedes that under the governing statutes and decisions the case has not been entered ‘forthwith’ in this court.

[8] That plaintiff however asks us in substance to find some way for varying established equity practice to the end that the expense may be avoided of printing the whole evidence when the complaining party thinks that it need not be printed. That cannot be done. It is provided by G. L. c. 214, § 24, that where oral evidence is taken by a commissioner, and reported to the full court, the case shall be ‘heard * * * upon the same evidence as on the original hearing.’ This is according to general and settled equity practice. Dorr v. Tremont National Bank, 128 Mass. 349, 357; Pigeon's Case, 216 Mass. 51, 55, 102 N. E. 932, Ann. Cas. 1915A, 737.

[9][10][11][12] It appears from affidavits that counsel for respective parties cooperated for several months to prepare an abbreviation of the complete transcript of the evidence and that finally, when agreement was reached, the plaintiff refused to print even the abbreviated form because of the expense. Whatever else may be said about the practice of presenting cases in equity on appeal from final decree upon abridgment of evidence agreed upon by the parties and approved by the judge (Gerrity v. Wareham Savings Bank, 202 Mass. 214, 219, 88 N. E. 1084;Robinson v. Donaldson, 251 Mass. 334, 336, 147 N. E. 679), it is certain that there is no power in the court to order such abridgment and presentation. It is the general equity practice and procedure established by statute and by practice that the entire must be reported on appeal when it is desired to have this court revise a finding made by a trial judge upon oral testimony. That is the only way in which this court can be put in the position of the trial judge and enabled to review his conclusions as to findings of fact. As has been pointed out many times, it is the essence of equity practice that this court examines all the evidence and reaches its own conclusions, giving to the findings of the judge the weight to which they are entitled. Colbert v. Moore, 185 Mass. 227, 70 N. E. 42;Lindsey v. Bird, 193 Mass. 200, 79 N. E. 263;Moss v. Old Colony Trust Co., 246...