Toy v. Green

Decision Date26 March 1946
Citation319 Mass. 354,65 N.E.2d 558
PartiesTOY v. GREEN et al.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

OPINION TEXT STARTS HERE

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.

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 defendantsclaimed 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 a copy of all the proceedings upon the said charges and pay all costs if judgment is not reversed; and if the said Sarah M. Toy judgment creditor shall in all respects, observe, perform and keep the said condition, then this recognizance to be void, otherwise to be and abide in full force. Witness, Richard M. Walsh, Esquire, at the Dorchester District of Boston, aforesaid, the sixteenth day of December in the year of our Lord one thousand nine hundred and forty-three. Frederick E. Simmons, Assistant Clerk.’

We cannot accept the contention of the defendants that the foregoing paper was not the record of the proceedings in the Municipal Court. ‘The character of a pleading or other paper put upon the files of the court must be determined from its essential substance and not from the title, name or description attached to it.’ E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883, 884;Universal Adjustment Corp. v. Midland Bank, Ltd., 281 Mass. 303, 328, 184 N.E. 152, 87 A.L.R. 1407. Here the statute, G.L.(Ter.Ed.) c. 224, § 19, contemplated that the substance of the contents of the paper should be available in the Superior Court in the event of appeal.

At the hearing on the motions to dismiss, the defendants called as witnesses Dora Tatelman; the special justice who found the defendants not guilty; and the second assistant clerk of the Municipal Court. Their testimony was, in brief, that the special justice set the penal sum of the recognizance at $100 in favor of each defendant; that neither the plaintiff nor the two sureties recognized before the special justice or before anyone; and that the sureties did no more than to appear in the clerk's office and to make a sworn statement of assets and liabilities. The judge in the Superior Court ‘made the following entry’: ‘The record of the proceedings in the district court certify [sic] that the plaintiff appealed and recognized with sureties to prosecute her appeal. In denying the motion[s] to dismiss I rule that the record is conclusive-and I gave no consideration to the evidence to the contrary given by the justice who heard the case and the assistant clerk of the court.’ The defendants excepted.

The judge was correct in ruling that parol evidence could not serve to contradict the record of the proceedings in the Municipal Court. ‘No principle is more firmly established than that which excludes oral testimony when offered to vary or contradict written judicial records. The record of a court of competent jurisdiction imports incontrovertible verity, as to all the proceedings which it sets forth as having taken place, and is of so high a nature that no averment can be made against it.’ Wells v. Stevens, 2 Gray 115, 117;Bryer v. American Surety Co. 285 Mass. 336, 337, 189 N.E. 109, and cases cited. We think that the defendants could not be heard to say that the plaintiff did not recognize with sufficient sureties, or that separate recognizances should have been given by the plaintiff to each defendant. There is nothing in the statute which invalidates one recognizance given jointly and severally to two defendants. Enough appears of record to show that the statutory requirements were fully met.

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3 cases
  • Com. v. Geagan
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • July 1, 1959
    ... ...         As the substance and not the name of a pleading controls (Commonwealth v. Wakelin, 230 Mass. 567, 571, 120 N.E. 209; E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883; Toy v. Green, 319 Mass. 354, 357, 65 N.E.2d 558), we shall consider the several grounds of the pleadings which we have summarized above under the forms of procedure to which their substance is appropriate ...         1. A motion to quash is confined to taking objection to an indictment 'for a formal ... ...
  • City of Quincy v. Brooks-Skinner, Inc.
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 3, 1950
    ... ... statutes and ordinances cannot be thwarted in this ... manner.' 303 Mass. page 48, 20 N.E.2d at page 427. In the ... cases under consideration there is no suggestion of fraud, ... constructive or otherwise, on the part of counsel for the ... city, and it will not be presumed. Toy v. Green, 319 ... Mass. 354, 360, 65 N.E.2d 558. The most that can be said is ... that he misapprehended the law ...        Had the judge of ... the Superior Court in the exercise of his discretion seen fit ... to grant the petitions here, we could not say that he was ... wrong. But it is one ... ...
  • Toy v. Green
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • March 26, 1946

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