Toy v. Green

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: WILKINS
• Citation: 319 Mass. 354,65 N.E.2d 558
• Parties: TOY v. GREEN et al.
• Decision Date: 26 March 1946

319 Mass. 354
65 N.E.2d 558

TOY
v.
GREEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 26, 1946.

Exceptions and Appeals from Superior Court, Suffolk County; Dowd and Morton, Judges.

Supplementary proceedings by Sarah M. Toy against Sadie Green and another, wherein plaintiff charged that certain parcels of real estate were transferred without consideration. Motions to dismiss for lack of jurisdiction and requests for rulings that upon the evidence that should be findings of not guilty were denied, and defendants bring exceptions.

Exceptions to rulings on motions to dismiss overruled; exception of the named defendant to denial of request for finding of not guilty sustained; exception of the other defendant to denial of request for finding of not guilty overruled.

[65 N.E.2d 559]

Before FIELD, C. J., and QUA, DOLAN, RONAN, and WILKINS, JJ.

B. L. Grossman, of Boston, for plaintiff.

J. C. Johnston, of Boston, for defendant Sadie Green.

J. Friedberg, of Boston, for defendant Morris Green.

WILKINS, Justice.

The plaintiff recovered judgment against the defendants Sadie Green and Morris Green, who are husband and wife, for a balance due on notes for money lent. Thereafter the plaintiff instituted supplementary proceedings against both defendants in the Municipal Court of the Dorchester District of the City of Boston. G.L.(Ter.Ed.) c. 224, § 14. Pending those proceedings she alleged as to each defendant ‘charges that since the debt was contracted or the cause of action accrued, the defendant or debtor has fraudulently conveyed, concealed or otherwise disposed of the whole or part of his property with intent to secure it to his own use or to defraud his creditors in that certain parcels of real estate were transferred without adequate consideration.’ G.L.(Ter.Ed.) c. 224, § 19, First. A special justice of the Municipal Court found the defendants not guilty. The plaintiff appealed to the Superior Court, where the defendants filed motions to dismiss for lack of jurisdiction. A judge denied the motions, and the defendants

[65 N.E.2d 560]

claimed exceptions. The case was tried before another judge, and the motions to dismiss were renewed and denied. The judge refused a request of each defendant for a ruling that upon the evidence there should be a finding of not guilty, and found the defendants guilty. The defendants excepted.

1. We first consider the motions to dismiss. The governing statute provides: ‘A party aggrieved by a judgment * * * may appeal therefrom to the superior court in the same manner as from a judgment of a district court in civil actions. If the plaintiff or creditor appeals, he shall before allowance thereof recognize with sufficient sureties to enter and prosecute his appeal, to file therewith a copy of all the proceedings on said charges, and to pay all costs if judgment is not reversed.’ G.L.(Ter.Ed.) c. 224, § 19. Compliance with the requirement that the creditor recognize with sufficient sureties was essential to the jurisdiction of the Superior Court. Clearwater Laundry Co., Inc., v. Wiley, 310 Mass. 255, 256, 37 N.E.2d 500. See Little v. Mathews, 317 Mass. 422, 423, 59 N.E.2d 13. We assume that the recognizance is void if the record of the Municipal Court does not show that it was taken before a justice of that court when exercising his powers and duties as such. Stack v. O'Brien, 157 Mass. 374, 376, 32 N.E. 351;Bent v. Stone, 184 Mass. 92, 95, 68 N.E. 46.

The docket in the Municipal Court showed the following: ‘December 16, 1943, Hearing finished D. A. Ross, Special Justice. Debtor Sadie Green found Not Guilty. Debtor Morris Green found Not Guilty. Appeal of Creditor as to Sadie Green filed. Appeal of Creditor as to Morris Green filed. $100-January term. Creditor recognizes with Dora Tatelman and Anna Baker as sureties.’ Even if no formal entry was made these entries might be considered as constituting the record itself. Warburton v. Gourse, 193 Mass. 203, 205, 206, 79 N.E. 270.

We are not called upon, however, to decide any question upon the docket entries alone, because the printed record in this court also contains what is entitled, ‘Extended memorandum of recognizance for judgment debtor [sic], on appeal from finding of guilty [sic], to Superior Court under G.L. Chap. 224 as amended by Chap. 334 Acts of 1927.’ This document bears the caption of the Municipal Court of the Dorchester District and reads: ‘On this sixteenth day of December in the year of our Lord nineteen hundred and fortythree, personally appeared before the said Court * * * Sarah M. Toy the judgment debtor [sic] named in a writ of execution bearing date the fifth day of April A.D. 1941 * * * upon a judgment which Sarah M. Toy * * * recovered against the judgment debtors * * *; and whereas supplementary proceedings were begun on said judgment, and are now pending, and Dora Tatelman and Anna Baker being personally present examined on oath and being deemed sufficient are accepted as sureties and thereupon, they the said Sarah M. Toy as principal, and the said Dora Tatelman and Anna Baker as sureties, acknowledge themselves to be jointly and severally indebted to Sadie Green and Morris Green, alias M. Green the aforementioned judgment debtors, in the sum of one hundred dollars * * * if default be made in the performance of the condition hereunder written, to wit: That whereas Sarah M. Toy the said creditor has made and filed in the said Court certain charges of fraud * * * and judgment thereon is rendered by the said Court that said Sadie Green and Morris Green * * * are each not guilty of the said charges. And the said Sarah M. Toy judgment creditor appeals to the Superior Court next to be held at the said Boston within and for the said County of Suffolk on the first Monday of January A.D. 1944. Now if the said Sarah M. Toy judgment creditor shall enter and prosecute her appeal with effect and produce at the said Superior Court so appealed to...