Trust v. Rantoul Garage Co.

• Court: United States State Supreme Judicial Court of Massachusetts
• Citation: 300 Mass. 86,14 N.E.2d 153
• Parties: HOME FINANCE TRUST v. RANTOUL GARAGE CO.
• Decision Date: 30 March 1938

300 Mass. 86
14 N.E.2d 153

HOME FINANCE TRUST
v.
RANTOUL GARAGE CO.

Supreme Judicial Court of Massachusetts, Essex.

March 30, 1938.

Exceptions from Superior Court, Essex County; Gray, Judge.

A writ of review by the Home Finance Trust against the Rantoul Garage Company to review an order of a district court. The plaintiff's motion to dismiss an appeal taken by the defendant from a judgment for the plaintiff was granted by a justice of the superior court and the defendant saved exceptions.

Exceptions overruled.

[14 N.E.2d 153]

W. E. Sisk, of Lynn, for plaintiff.

T. A. Henry, of Salem, for defendant.

RUGG, Chief Justice.

This writ of review comes before us on a bill of exceptions filed by the defendant in the Superior Court to the allowance of a motion to dismiss an appeal taken by the defendant from a judgment in favor of the plaintiff.

It is necessary under our statute that a writ of review be brought in the court in which the judgment to be reviewed was rendered. The plaintiff in review has no choice of court. G.L.(Ter.Ed.) c. 250, § 22; Lynn Gas & Electric Co. v. Creditors' National Clearing House, 235 Mass. 114, 126 N.E. 364. It is a separate proceeding from the action sought to be reviewed. Clarke v. Bacall, 171 Mass. 292, 50 N.E. 614. The case sought to be reviewed by the present proceeding was brought in a district court in Essex County. The docket entries in that court so far as here material are, in substance, that on April 30, 1936, the judge who heard the writ of review filed rulings and findings for the plaintiff for $7,058.89 with costs. Notice thereof was mailed to the

[14 N.E.2d 154]

attorneys. On May 2, 1936, there was filed ‘exception’ to the denial of the defendant's motion for judgment. On May 4, 1936, the defendant filed a request for report. On May 6, 1936, the defendant's motion to extend time for filing a draft report was allowed. The draft report was filed by the defendant on May 20, 1936. On the following day the defendant requested hearing on the draft reports, hearings were held on November 23-30, 1936, and on December 3, 1936, the defendant's request for report was disallowed. Judgment for the plaintiff was entered on the docket on December 4, 1936, in accordance with the rulings and findings of April 30, 1936. On December 5, 1936, the defendant's claim of appeal was filed. The plaintiff filed in the Superior Court a motion to dismiss this appeal on the grounds (1) that ‘said appeal was claimed too late, judgment for the plaintiff having been entered before said appeal was claimed,’ and (2) that ‘the District Court had no jurisdiction to entertain said claim of appeal.’ That motion was allowed on February 9, 1937. The exception of the defendant to the allowance of that motion brings the case here.

The proceedings in the District Court set out in the docket entries beginning with May 4, 1936, were a nullity. They were all directed toward having the case reported for decision by the Appellate Division of the District Court. There can be no report to the Appellate Division of a writ of review. The Appellate Division has no jurisdiction in the premises. The established method to correct errors in a writ of review in a district court is by appeal to the Superior Court. That question has been settled and is no longer open to doubt. G.L.(Ter.Ed.) c. 231,...