St. Nicholas Russian Ben. Soc. of Salem Inc. v. Yaselko
| Decision Date | 13 April 1932 |
| Citation | 180 N.E. 721,279 Mass. 81 |
| Parties | ST. NICHOLAS RUSSIAN BEN. SOC. OF SALEM, Inc., v. YASELKO et al. (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Supreme Judicial Court, Essex County.
Action for mandamus by the St. Nicholas Russian Benefit Society of Salem, Incorporated, against Thomas Yaselko and others and ancillary suit in equity in aid thereof. From order dismissing petition for mandamus, decree dismissing suit in equity, and from order dismissing bill of exceptions for want of prosecution, plaintiff appeals and petitions for leave to enter exceptions late.
Appeal dismissed. Decree affirmed. Petition denied.E. Z. Dymsza, of Boston, for appellant.
W. H. McSweeney, M. J. McSweeney, and J. A. Murphy, all of Salem, for appellees.
There are here three proceedings. The first is a petition for a writ of mandamus. Ancillary to that petition is a suit in equity. The third is a petition for leave to enter exceptions late in the mandamus case. The mandamus case was referred to an auditor who filed a report dealing at length with all the issues involved. The case then came on to be heard before a single justice who found the facts set forth in the auditor's report to be true with certain modifications, dealt with numerous requests for rulings presented by both parties, and ordered the petition dismissed but not as matter of discretion. The petitioner filed a bill of exceptions which was allowed on June 11, 1931. Late in September, 1931, the respondents filed a motion to dismiss the bill of exceptions for failure to prosecute as required by law. That motion was heard by another justice who found the material facts in substance as follows: Shortly before June 8, 1931, counsel for the petitioner indicated at the office of the clerk of courts the papers in his opinion necessary to be printed. On June 8, 1931, he wrote to the assistant clerk of courts in charge of the matter enclosing a substitute bill of exceptions and asking for an estimate of the cost of printing. On June 10, 1931, such estimate was sent to counsel for the petitioner together with the information that within ten days from the allowance of the bill of exceptions an order for printing should be forwarded. On June 12, 1931, notice was sent to counsel that the exceptions were allowed and that the order for printing must be entered within ten days. On June 19, 1931, counsel sent to the assistant clerk a formal order for the printing, and in another letter mentioned that he was interested in keeping the expense of printing to a minimum and would be in the clerk's office on Monday or Tuesday of the following week to go over the papers and requested delay until then before formal notification of an estimate. Counsel never after that consulted with the assistant clerk of courts or anyone representing him. The finding to this effect by the single justice is accepted as true on this point notwithstanding a contrary affidavit. No written estimate was sent by the assistant clerk after June 19, 1931, because of the fact that the estimate had already on June 10, 1931, been submitted to counsel in response to his written request therefor. No communication was had or sought with the assistant clerk of courts until after the motion to dismiss the exceptions had been filed, when a further request for a written estimate was made. The single justice sustained the motion to dismiss the bill of exceptions for want of prosecution. The petitioner appealed from this order.
It is plain that no appeal lies from such an order. The proper method of seeking revision by the full court of a decision or ruling by a single justice in an action at law is by a bill of exceptions. Channell v. Judge of Central District Court of Northern Essex, 213 Mass. 78,90 N. E. 769,Cote v. Judge of Second District Court of Eastern Middlesex, 225 Mass. 123, 113 N. E. 777.
The petitioner also filed a suit in equity seeking special equitable relief in aid of the petition for a writ of mandamus. That suit in equity was dismissed with costs by final decree. Since the petition for writ of mandamus is dismissed, it follows that the final decree must be affirmed in the...
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