Silverstein v. Daniel Russell Boiler Works, Inc.

• Decision Date: 04 December 1925
• Citation: 254 Mass. 137,149 N.E. 705
• Parties: SILVERSTEIN v. DANIEL RUSSELL BOILER WORKS, Inc. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 137

149 N.E. 705

SILVERSTEIN

v.DANIEL RUSSELL BOILER WORKS, Inc. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 4, 1925.

Exceptions from Superior Court, Suffolk County; M. Morton, Judge.

Action of contract by Morris L. Silverstein against the Daniel Russell Boiler Works, Inc. Verdict for defendant, and case reported. To a ruling of the superior court on motion to dismiss case for want of prosecution, plaintiff excepts. On motion to dismiss report. Exceptions overruled. Motion to dismiss case allowed.

Joseph Cavanagh, of Boston, for plaintiff.

Curtin, Poole, Allen & Cooch, of Boston, for defendant.

RUGG, C. J.

This is an action of contract. The case is before us on two forms of procedure, one a bill of exceptions to a ruling of the superior court on a motion there made to dismiss the case for want of prosecution, the other a motion made in this court to dismiss the report of the judge of the superior court because it was not seasonably entered here.

[1] 1. The bill of exceptions is considered first. Verdict for the defendant was rendered on January 8, 1924. After intervening proceedings, which need not be recited, the judge filed a report of the case to the full bench on December 17, 1924. No further action was taken until March 6, 1925, when the defendant filed a motion to dismiss the report for want of prosecution. This motion was marked for hearing on March 12, but was successively postponed on request of the plaintiff to March 16, 19, 20, and 23. On March 11 the plaintiff placed an order with the clerk of the superior court for the printing of the record and made the necessary deposit, and on March 21, the record having been printed, entered the case in the Supreme Judicial Court for the commonwealth. The motion was heard on March 23, 1925. The court ruled that the entry of the report in the Supreme Judicial Court divested him of further jurisdiction over the motion and denied it. The defendant excepted.

The ruling was right. It doubtless would be possible to say that the attempt to enter the report in this court after the lapse of so long a time as not to be ‘as soon as may be’ within the meaning of those words in G. L. c. 231, § 135, was ‘a mere void act,’ which left the whole matter still pending in the superior court. See Bergen v. Jones, 4 Metc. 371, 375.But such a conclusion would give rise to confusion in practice and parties might well be at a loss to know in which court the exceptions, appeal or report was pending, or be puzzled as to the correct course to pursue. After the entry fee has been paid to the clerk of the Supreme Judicial Court and the appropriate papers and copies filed with him, it seems better to treat the case as pending here, subject to whatever steps properly may be taken to dismiss it. Daley v. Francis, 153 Mass. 8, 11, 26 N. E. 132;O'Neil v. O'Neil, 229 Mass. 508, 118 N. E. 895. It would be awkward to regard the question whether the case had been entered ‘as soon as may be’ to be pending at the same moment in the superior and in the Supreme Judicial Court. Difficulties might arise in interpreting parts of G. L. c. 231, § 133, if it should be held that the motion to dismiss was pending in the superior court as well as in this court. By entry of the report in the full court, it was removed from further action of the superior court. Gassett v. Cottle, 10 Gray, 375;Cobb v. Rice, 128 Mass. 11;Barnett v. Loud, 243 Mass. 510, 513, 137 N. E. 740. The case at bar is distinguishable in this particular from Joannes v. Underwood, 6 Allen, 240;Jarvis v. Mitchell, 99 Mass. 530, 532, and McRae v. Locke, 114 Mass. 96, on which the defendant relies. It is also to be distinguished from Littlejohn v. Littlejohn, 236 Mass. 326, 128 N. E. 425.

[2] It would be better practice, however, when a motion has been made in the superior court to dismiss for want of prosecution under G. L. c. 231, § 133, for the excepting or appealing party to await the decision of that court and not attempt to execute his own delayed intentions or to circumvent his adversary by making a speedy entry in this court after the filing of the motion in the superior court. The hearing on such motion ought not to involve any considerable delay. The superior court is the appropriate tribunal for the trial of disputed facts. The rights of the parties can there be quickly determined. A party could protect his rights as well as circumstances permit by filing a petition for late entry under G. L. c. 211, § 11.

The exceptions must be overruled.

[3] 2. The report of the judge on the merits was entered in this court on March 2, 1925. On July 6, 1925, the defendantfiled in this court a motion to dismiss the case for want of prosecution in failing seasonably to enter the case within the time required by law. The an accompanying affidavit the facts were set forth which have herein already been recited in considering the exceptions as to delay in entering the report in this court after it was filed in the superior court. Reply affidavit was filed in behalf of the plaintiff. Additional facts thus developed are that by reason of the pressure of other duties there was oversight in giving to the clerk of the superior court the necessary order for printing the record and preparation of copies and making the necessary deposit to cover the expense from December 17, 1924, until March 11, 1925, when these matters were attended to, and 10 days later the case was ready for entry in this court and was so entered. There was thus the delay from December 17, 1924, when the report was filed, to March 11, 1925, being 3 months lacking 6 days before any steps were taken for the entry...