Snow v. Dyer

• Decision Date: 02 April 1901
• Citation: 59 N.E. 1023,178 Mass. 393
• Parties: SNOW v. DYER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

178 Mass. 393

59 N.E. 1023

SNOW v. DYER.

Supreme Judicial Court of Massachusetts, Barnstable.

April 2, 1901

COUNSEL

W. O. Childs, for appellant.

Chas R. Snow, Jr., for defendant.

OPINION

HAMMOND, J.

This is an action of forcible entry and detainer under Pub. St. c 175, brought in the Second district court of Barnstable. There was a hearing before the court September 14, 1899, and the case was continued until the 29th of the same month, at which time judgment was entered for the plaintiff. On the same day the court passed an order extending the time for appeal to October 10, 1899, on which day the appeal bond was filed; and the record continues as follows: 'And it was considered by the court that the said plaintiff recover against the said defendant the sum of thirty-one dollars and seventy-four cents, costs of suit, from which said judgment the defendant appealed to the superior court next to be holden at Barnstable, within and for the county of Barnstable, on the first Monday of November next, and filed a bond, with sufficient sureties, in the sum of one hundred and fifty dollars, to prosecute his said appeal.' A strict interpretation of the record might seem to lead to the conclusion that there were two judgments, one of September 29th for possession, and one of October 10th for costs, and that the appeal to the November sitting of the superior court was simply from the judgment as to costs. The appeal bond filed in court, however, recites that on September 29th the plaintiff recovered judgment for possession of the premises described in the writ, and also for $31.74 costs of suit. It is treated as one judgment, as it ought to have been. The bond further recites that the appeal from this judgment is to the November sitting of the superior court, 'the time for appeal having been extended to October 10, 1899.' We therefore regard the record as showing, in substance, one judgment, namely, that of September 29th, the entry of October 10th as to costs being an extension simply of a part of the judgment of September 29th; and the parties have argued the case upon that view. On the first Monday of November the defendant filed in the appellate court the proper papers, and on the same day the plaintiff filed there a complaint for affirmation of the judgment of the district court upon the ground that the appellant had failed to enter and prosecute the appeal according to law. The case was continued until October 11, 1900, on which day the defendant filed a paper resisting the motion of the plaintiff for affirmance on the ground that the time for appeal had been extended by the consent of the counsel for the plaintiff. The court on that day granted the motion for affirmance, and the defendant appealed. On November 5, 1900, judgment was entered for the plaintiff for possession and costs, and the defendant again appealed. The case is before us on these last two appeals.

The first question is whether the district court could extend the time for appeal. It is plain that it could not. The time for appeal is fixed by the statute. Even where the time for filing the bond may be extended, the appeal must be taken 'within twenty-four hours after the entry of judgment,' and it must be to the superior court 'then next to be held in the county' (St. 1893, c. 396, § 24; McIniffe v. Wheelock, 1 Gray, 600), by which phrase is now meant the court held on the return day next after the expiration of the said 24 hours (St. 1885, c. 384, § 5). It is contended, however, by the defendant, that, if the provisions of the statute authorizing the extension of the time for filing a bond in the case of an appeal from a district court apply to any action of forcible entry and detainer, the appeal is not taken until the bond is filed that the power to extend the time for filing the bond necessarily implies the power to extend the time for taking the appeal; and that, when the time for filing the bond is extended beyond the return day next after the expiration of 24 hours from the judgment, the appeal must be considered as taken to the court to be held on the return day next after the time of filing the bond. It is further contended by the defendant that, if the above-named statutes as to the time of filing the appeal bond do not apply, and it is held that such an appeal is regulated by the provisions of Pub. St. c. 175, § 6, then, inasmuch as no time is specified in that section within which the bond is to be filed, the time may be extended to any reasonable extent. Neither position is tenable. If the legislature had intended to give to the district court the power to extend the time of appeal, it would have been likely to express such an intention in direct and plain language, especially when it was dealing with the subject of appeals in the very section immediately preceding. See St. 1893, c. 396, §§ 24, 25. Moreover, when an appeal is taken, the clerk must transmit the papers to the appellate court, so that they may be there on the proper return day. The reasonable construction of the provision for extending the...