Toy v. Green

• Decision Date: 26 March 1946
• Citation: 319 Mass. 354,65 N.E.2d 558
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: SARAH M. TOY v. SADIE GREEN & another.

319 Mass. 354

65 N.E.2d 558

SARAH M. TOY v. SADIE GREEN & another.

Supreme Judicial Court of Massachusetts, Suffolk.

March 26, 1946

January 10, 1946.

Present: FIELD, C.

J., QUA, DOLAN RONAN, & WILKINS, JJ.

Supplementary Proceedings. Bond, Appeal recognizance, In supplementary proceedings. Practice, Civil, Appeal from District Court to Superior Court. Superior Court, Jurisdiction. Evidence, Court record, Extrinsic affecting writing. District Court, Court record. Fraudulent Conveyance. Fraud.

That the creditor in supplementary proceedings gave the recognizance necessary to the jurisdiction of the Superior Court on the creditor's appeal from a judgment of not guilty on a charge of fraud in the

District Court was sufficiently shown by a docket entry of the District Court stating "Creditor recognizes with . . . [named persons] as sureties," and by an "Extended memorandum of recognizance" printed in the record in this court and reciting at length an examination and acceptance of the sureties and that they and the creditor "acknowledge themselves . . . indebted to" the debtor for a stated amount for performance of the condition specified in G. L (Ter. Ed.) c. 224,

Section 19.

Facts shown by the record of a District Court cannot be contradicted by parol evidence. One recognizance might properly be given to two debtors on an appeal to the

Superior Court by a creditor from judgments of not guilty on charges of fraud made in supplementary proceedings against both debtors in a

District Court. The filing of "a copy of all the proceedings on said charges" required by

G. L. (Ter.

Ed.) c. 224 Section 19, on appeal to the Superior Court from a judgment on charges of fraud made in supplementary proceedings in a District Court is merely a term of the appellant's recognizance and is not essential to the jurisdiction of the Superior Court.

The mere facts that a wife, at a time when she and her husband were indebted to a third person, without consideration conveyed to a corporation real estate belonging to the husband but standing of record in her name and that the husband joined in the deed to release "all rights of tenancy by the curtesy and other interests therein," would not warrant a finding of guilty as to either of them on charges of fraud made by their creditor against them in supplementary proceedings; but further evidence that the husband, upon being asked why he did not pay the creditor, had said "she [the creditor] will never get it. I transferred . . . the property . . . to the" corporation, warranted a finding of guilty as to him.

SUPPLEMENTARY PROCEEDINGS in the Municipal Court of the Dorchester District of the City of Boston.

Proceedings respecting charges of fraud are described in the opinion. The first motions to dismiss in the Superior Court were heard by Morton, J., and the case was heard on the merits by Dowd, J.

J. C. Johnston, for the debtor Sadie Green. J. Friedberg, for the debtor Morris Green.

B. L. Grossman, for the creditor.

WILKINS, J. 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, Section 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, Section 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 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, Section 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. See Little v. Mathews, 317 Mass. 422 , 423. 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. Bent v. Stone, 184 Mass. 92 , 95.

The docket in the Municipal Court showed the following: "December 16, 1943 Hearing finished D. A. Rose, 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.

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 forty-three, 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. Universal Adjustment Corp. v. Midland Bank, Ltd. 281 Mass. 303 , 328. Here the statute (G. L. [Ter. Ed.] c. 224, Section 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...