Sweeny v. Home Owners' Loan Corp.
| Decision Date | 31 October 1940 |
| Citation | 29 N.E.2d 712,307 Mass. 165 |
| Parties | LESTER K. SWEENY v. HOME OWNERS' LOAN CORPORATION. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
September 24, 1940.
Present: FIELD, C.
J., LUMMUS, QUA COX, & RONAN, JJ.
Equity Pleading and Practice, Amendment into action at law, Assignment for hearing, Appeal.
No error was shown in the denial of a motion to amend into an action at law a suit in equity for relief against a foreclosure deed.
A court has inherent power of its own motion to set a case down for hearing.
A decree dismissing a bill in equity must be affirmed on an appeal with findings by the trial judge supporting the dismissal and without a report of the evidence.
Appeals from a judge's findings in equity and from the denial of a motion to incorporate the evidence in the record on appeal had no standing and were dismissed.
BILL IN EQUITY filed in the Superior Court with a writ of summons and attachment dated September 25, 1939.
The orders and decrees appealed from were by T. J. Hammond, J. The case was submitted on briefs.
L. K. Sweeny, pro se.
J. J. Brennan & W.
V. Hyland, for the defendant.
This is a suit in equity commenced by an original writ of summons and attachment under G. L. (Ter. Ed.) c. 214, Sections 7, 8. The bill was not "inserted" in the writ as a declaration was inserted in the writ at common law but was a separate document filed apparently at the time of the entry of the writ which merely summoned the defendant to appear and answer "in an action of suit in equity." But no point was made of this matter, and we need not consider it. See Whiting v. Houghton, 228 Mass. 429; Atlantic National Bank of Boston v. Hupp Motor Car Corp. 300 Mass. 196 .
On April 10, 1940, the judge denied the plaintiff's motion to amend his suit into an action at law, and from an interlocutory decree to that effect the plaintiff appealed. See G. L. (Ter. Ed.) c. 231, Section 55. The bill as originally drawn is not in the record, though a substituted bill allowed as an amendment on April 24, 1940, is before us. The substituted bill seeks relief against a foreclosure deed held by the defendant, on the ground that the plaintiff has by adverse possession a title superior to the foreclosed mortgage. Although the appeal brings before us questions of discretion (Long v. George, 296 Mass. 574 , 579), there is nothing in the record to show that the judge was wrong in denying the motion to amend.
The plaintiff claims an appeal from an interlocutory decree setting the case down for hearing on the merits by order of the judge and without request or action by any party. We assume in favor of the plaintiff that there was such an interlocutory decree although the printed record fails to show it. The action of the judge was an exercise of an...
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