Seder v. Kozlowski
| Decision Date | 25 February 1942 |
| Citation | 311 Mass. 30,40 N.E.2d 14 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | HARRY SEDER v. STANISLAW KOZLOWSKI & others. |
September 22, 1941.
Present: FIELD, C.
J., QUA, DOLAN COX, & RONAN, JJ.
Equity Pleading and Practice, Proceedings to reach and apply equitable assets Master: special; Appeal: Decree; Motion; Findings by judge. Error, Whether error shown. Receiver. Equity Jurisdiction Receiver.
A decree adjudging a debt to be due the plaintiff from the defendant, ordering it paid and that, in default of payment, certain property be sold by a special master and the net proceeds of the sale be paid to the plaintiff so far as necessary to satisfy the debt and the balance, if any, to the defendant, was a final decree for the purpose of appeal.
Section 25A of G. L. (Ter. Ed.) c. 214 does not preclude the entry of a decree in a suit in equity dismissing for want of prosecution an appeal from a decree, final for the purpose of appeal.
An appeal dismissed by the trial court in a suit in equity should not be treated as entered in this court although printed in the record.
An appeal from an interlocutory decree in a suit in equity is nugatory in the absence of an appeal from the final decree.
A decree in a suit in equity confirming a report of a special master, appointed under a final decree adjudging a debt to be due the plaintiff from the principal defendant, ordering payment thereof and, in default of payment, directing the appointment of the special master to sell certain property and apply the net proceeds to payment of the debt, was a supplemental decree and final for purposes of appeal by aggrieved parties under Section 19 of G. L. (Ter. Ed.) c. 214; and the principal defendant was such a party.
The principal defendant in a suit in equity to reach and apply an equitable asset in satisfaction of a debt due the plaintiff was entitled to an opportunity to be heard before confirmation of a sale by a special master appointed under a final decree adjudging the debt and directing sale of such asset and application of the proceeds to payment of the debt, and lack of such opportunity, while not depriving the court of jurisdiction to enter a decree confirming the sale, would be an irregularity reviewable by appeal.
The entry of a decree in a suit in equity confirming the report of a special master appointed to sell certain property and apply the net proceeds toward satisfaction of a debt due the plaintiff implied a finding of every fact essential to the right entry thereof not inconsistent with anything in the record, including the giving of an opportunity to be heard on the confirmation to parties aggrieved thereby.
After the entry in a suit in equity of a supplemental decree confirming the report of a special master appointed to sell certain property and apply the net proceeds to payment of a debt owed the plaintiff, a defendant, although such supplemental decree was final for purposes of appeal, was entitled to raise, by a motion to vacate it, the question whether it was entered without his being given an opportunity to be heard on its merits.
The denial of a motion to vacate a decree because a party aggrieved thereby was not given an opportunity to be heard on its merits before it was entered disclosed no error where, on appeal from such denial, there was no report of evidence nor report of material facts found by the judge.
Following an appeal in a suit in equity from a supplemental decree confirming a sale of property of the defendant by a special master and application of the net proceeds thereof toward satisfaction of a debt adjudged due the plaintiff, it was not improper to appoint a receiver of such property pendente lite.
BILL IN EQUITY, filed in the Superior Court on August 25, 1937.
Of the proceedings described in the opinion following the decision reported in 304 Mass. 367 , the hearing and allowance of the motion to amend the bill were by Goldberg, J., the entry of the final decree after rescript was by order of Giles, J., the decree dismissing the appeal of Anthony J. Kozlowski therefrom and the decree confirming the report of the special master were by order of T. J. Hammond, J., the denial of the motion that such decree "be modified, corrected or vacated," and the decree appointing a receiver pendente lite were by order of Broadhurst, J.
F. P. McKeon, for the defendants. J. M. Smith, for the plaintiff.
This bill in equity was brought in the Superior Court, naming as defendants Stanislaw Kozlowski, Jozefa Kozlowski, Bronislaw Kozlowski and Anthony Kozlowski, to establish a debt alleged to be due to the plaintiff, and to provide for the payment thereof by reaching property of one of the defendants alleged to have been conveyed in fraud of the plaintiff. A final decree was entered in the Superior Court establishing the debt and providing, in the event that the debt was not paid for the sale in satisfaction of the debt of certain real estate found to have been conveyed in fraud of the plaintiff. All of the persons named as defendants appealed. No relief, however, was sought by the bill against the defendant Anthony Kozlowski. And this court by its rescript ordered: "If the Superior Court shall find that the liability of the defendant Anthony Kozlowski to the plaintiff was fully and fairly tried, and shall allow the plaintiff to amend his bill by alleging such liability, within thirty days after rescript, then final decree is to be affirmed with costs; otherwise the final decree is to be reversed, and a new final decree is to be entered dismissing the bill with costs." Seder v. Kozlowski, 304 Mass. 367 , 370.
In the Superior Court the plaintiff's motion to amend his bill, by substituting for an allegation in the original bill an allegation that "the defendants, Stanislaw Kozlowski, Jozefa Kozlowski and Anthony J. Kozlowski, are indebted to him in the sum of . . . $9,000 for goods sold and delivered to the said defendants by the plaintiff," and to amend the prayers of the bill in accordance with the stating part of the bill, was seasonably allowed, and it was found, after hearing, that the liability of the defendant Anthony Kozlowski "was fully and fairly tried." All of the defendants appealed from this finding, describing it as a "decree," as it is hereinafter referred to without discussion of the accuracy of the description. Thereafter a final decree after rescript was entered, adjudging that there was due to the plaintiff from the defendants Stanislaw Kozlowski, Jozefa Kozlowski and Anthony Kozlowski the sum of $7,132.06 with interest, and ordering these defendants to pay this amount with costs within thirty days from the date of the decree. This decree provided also that, if such payment was not made, a special master thereby appointed should sell a certain described parcel of real estate, and provided further for the cancellation of a certain deed and a certain mortgage of such real estate, for the transfer by the special master of the real estate to the purchaser thereof, and for the payment to the plaintiff, after payment of the costs and expenses of the sale, of "said sums as are awarded in this decree and interest to the date of payment and costs as provided herein," and payment of the balance to the defendants Stanislaw Kozlowski and Jozefa Kozlowski. From the final decree after rescript the defendant Anthony (J.) Kozlowski appealed. Further proceedings in the suit are described later.
1. No appeal from the final decree after rescript is before us.
This decree was a final decree for the purpose of appeal, though contemplating the possibility of a supplemental decree in the alternative that a sale of the real estate was made by the special master appointed thereby. See Wilson v. Martin-Wilson Automatic Fire Alarm Co. 151 Mass. 515 , 516-517; Old Colony Trust Co. v. Great White Spirit Co. 178 Mass. 92 , S. C. 181 Mass. 413; Gordon v. Borans, 222 Mass. 166; Rolfe v. Clarke, 224 Mass. 407; Boston & Maine Railroad v. Greenfield, 253 Mass. 391 , 396; Dolphin v. A. C. Lewis Leather Co. 269 Mass. 132 , 137, 139; Plumer v. Houghton & Dutton Co. 277 Mass. 209 , 212-213; Kingsley v.
Fall River, 280 Mass. 395 , 398, 400; Chase v. Driver, 92 F. 780, 784; Felker v. Southern Trust Co. 264 F. 798, 801; Rector v. United States, 20 F.2d 845, 861-872, and cases cited. The defendants other than Anthony Kozlowski, however, did not appeal from the final decree after rescript. The defendant Anthony (J.) Kozlowski appealed. But his appeal was dismissed by a decree of the Superior Court upon a motion of the plaintiff that it be dismissed on the ground "that the defendants have failed to comply with the procedure necessary to effect said appeal." From such a decree no appeal lies. Nor was there any attempt to take such an appeal. The remedy of this defendant was a petition seasonably filed under G. L. (Ter. Ed.) c. 211, Section 11, in the form substituted by St. 1933, c. 300, Section 1. G. L. (Ter. Ed.) c. 231, Section 133, as amended by St. 1933, c. 300, Section 2. Consequently, no question of error in the decree dismissing the appeal is before us.
It is argued however, that the Superior Court was without power to enter such a decree by reason of G. L. (Ter. Ed.) c. 214, Section 25A, providing that in "suits in equity a final decree shall be entered although exceptions have been taken or a bill of exceptions has been filed and allowed, but execution and operation of the decree so entered shall be stayed until the exceptions have been disposed of unless the judge who made the ruling to which the exception or exceptions were taken finds that the exceptions are immaterial, frivolous or intended for delay." Prior to the enactment of this statute by St. 1926, c. 177, the...
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