Universal Optical Corp. v. Globe Optical Co.

• Decision Date: 25 May 1917
• Citation: 228 Mass. 84,116 N.E. 491
• Parties: UNIVERSAL OPTICAL CORP. v. GLOBE OPTICAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 84

116 N.E. 491

UNIVERSAL OPTICAL CORP.

v.GLOBE OPTICAL CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1917.

Report from Superior Court, Suffolk County; Hugo A. Dubuque, Judge.

Suits by the Universal Optical Corporation, Columbia Electrical Engineering Company, Boston Optical Company, and Harwood Bros. against the Globe Optical Company. Heard on report. Order of superior court, dismissing the appeals and directing that the papers be transmitted to the municipal court, affirmed.

Memorandum by Dubuque, J., of superior court:

These are four cases of scire facias brought in the municipal court of Boston wherein the defendant as trustee was charged in the original suit, and on scire facias, and he appealed to this court. These cases were brought since the operaion of the St. 1912, c. 649, regulating removals to this court. The object of that statute was to do away with appeals which had theretofore prevailed in all cases under R. L. c. 173, § 97, as amended by St. 1906, c. 451, and St. 1910, c. 534, § 1. Under this former statute one had to be ‘aggrieved’ in order to have the right to appeal. It is not so under St. 1912, c. 649.

This act of 1912 provides in section 1 for the concurrent jurisdiction of the municipal court and this court in actions of contract, tort and replevin where the damages do not exceed $2,000, and ‘in actions by the trustee process' if one or more of the trustees live or have their usual place of business in the county of Suffolk. Section 2, as finally amended by St. 1914, c. 409, relates to the plaintiff who waives his right to trial by jury and his right of appeal by commencing his suit in the municipal court. Section 3 (as amended by St. 1914, c. 371, as to bonds approved by masters in chancery), provides that, ‘No other party to such action shall be entitled to an appeal.’ In lieu thereof it provides for a removal to this court, if within two days after the time allowed for appearance he files a claim for jury trial and an affidavit that an issue of fact requires ‘trial in the cause,’ and files a bond of ‘100. By section 8 (see amendment St. 1914, c. 35, § 3) an municipal court thereby created; division of the municipal court thereby created; and by section 9 (as amended by St. 1914, c. 35, § 4) an appeal lies to the Supreme Judicial Court.

It is contended by the plaintiff that no appeal lies to this court, and, therefore, that this court has no jurisdiction of these several cases. It appeared at the hearing before me, without a jury, and was admitted that these several cases went to the appellate division of the municipal court, which ordered the trustee (defendant here) charged; and no appeal under section 9 was taken to the Supreme Court on the questions of law raised in the lower court and in this court.

Scire facias brought against the trustee, charged in trustee process, must be commenced in the same court as the original suit. R. L. c. 189, § 45. Indeed it is held to be an extension of the same case, in the nature of a supplementary proceeding, to get a direct judgment against the trustee. Chief Justice Shaw, speaking of scire facias, said: ‘It is so far a judicial writ that it takes up a cause in which other proceedings have been had; it issues upon some existing record; and it must issue from the court in which such proceedings have been had, and where such record remains.’ McGee v. Barber, 14 Pick. 212, 215. To the same effect is Osgood v. Thurston, 23 Pick. 110, 111. It was said later: ‘The original suit and the scire facias are part of one continued and connected course of proceedings.’ Fay v. Sears, 111 Mass. 154, 155. And in Gray v. Thrasher, 104 Mass. 373, 375, it was held not to be a ‘civil action’ within the meaning of St. 1862, c. 217, § 4, and St. 1866, c. 279, § 9, relating to removals from the municipal court of Boston to this court; although it has lately been held that scire facias sued out to obtain another execution on a former judgment was in the nature of an original action, in Perkins v. Bangs, 206 Mass. 408, 92 N. E. 623; yet the force of the cases first above cited does not seem to have been impaired by the latter decision, so far as trustee process is concerned.

I conclude and rule that this court has no jurisdiction of these four cases, and that in each one of them the entry will be: Appeal dismissed for want of jurisdiction; and the papers in the case are to be remanded to the municipal court of the city of Boston (see Dion v. Powers, 128 Mass. 192).

Powers & Hall, of Boston, for plaintiffs.

F. D. Fuller, of Boston, for defendant.

BRALEY, J.

It has been repeatedly decided that the original suit by trustee process and the writ of scire facias provided by R. L. c. 189, where the trustee upon demand does not pay over to the officer goods, effects or credits sufficient to satisfy the execution, and the execution is not otherwise satisfied, which is to be...