Weinstein v. Miller

• Decision Date: 03 March 1925
• Citation: 146 N.E. 902,251 Mass. 503
• Parties: WEINSTEIN v. MILLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

251 Mass. 503

146 N.E. 902

WEINSTEIN

v.MILLER.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1925.

Appeal from Superior Court, Suffolk County; O'Connell, Judge.

Suit by Jacob Weinstein against Victor Miller. Decree for plaintiff was affirmed on condition that amendment to declaration be filed, and on receipt of rescript plaintiff gave notice to the Massachusetts Bonding & Insurance Company, surety on bond given by defendant to dissolve attachment, or hearing on allowance of amendment. From interlocutory decree allowing amendment, the Bonding Company appealed, and from final decree perfected late appeal with permission of Supreme Court. Interlocutory and final decrees affirmed.

Geo. P. Davis, of Boston, for appellant.

J. C. Johnston, of Boston, for appellee.

CARROLL, J.

The rescript in Weinstein v. Miller, 249 Mass. 516, 144 N. E. 387, ordered that the plaintiff be given leave to amend within thirty days, by setting out the modified contract. By an interlocutory decree dated July 9, 1924, the amendment was allowed. The defendant, the Massachusetts Bonding & Insurance Company, surety on the bond to dissolve the attachment, was notified to appear at the hearing on the allowance of the amendment, by an order of notice obtained by the plaintiff. The bonding company duly appealed from this interlocutory decree allowing the amendment, but took no appeal from the final decree within the time limited therefor. Thereafter, the bonding company filed a petition before the full court, for leave to appeal late from the final decree of the Superior Court, which petition was granted, provided the appeal was entered in the Superme Judicial Court before December 30, 1924. The bonding company appealed from the final decree, and the appeal was entered in accordance with an order of the Supreme Judicial Court.

[1] The plaintiff contends that the appeal is not before us; that there could be no appeal from a final decree entered in accordance with a rescript of the full court, and that the appeal from the interlocutory decree does not bring the case to this court. By G. L. c. 231, § 138, the allowance by the court of an amendment shall be conclusive evidence of the identity of the case of action but no person other than the parties to the record are to be bound by such allowance, unless notified of the application for leave to amend, and he has an opportunity to be heard tereon; ‘and such third parties shall have the right of exception or appeal.’ The appeal from the interlocutory decree was seasonably filed. We need not discuss the question whether such an appeal, by itself, will lie to this court. See G. L. c. 214, § 26. Macurda v. Fuller, 225 Mass. 341, 114 N. E. 366;Sciola's Case, 236 Mass. 407, 415, 128 N. E. 666. By G. L. c. 214, § 28, a party who by accident or mistake has omitted to claim an appeal from a final decree within the time prescribed, may, within one year after the entry of the decree from which he desires to appeal, petition the full court for leave to appeal, which may be granted upon terms. The bonding company petitioned under this statute, and its petition was granted. The company having appealed from the interlocutory decree, and its petition to enter an appeal late having been granted by the full court, the case is property before us and the question whether the bonding company is bond by the allowance of the motion amending the bill of complaint can be considered. See McFeely v. Scott, 128 Mass. 16.

[2][3] The opinion in Weinstein v. Miller, supra, at page 522, 144 N. E. 389, states that ‘the plaintiffs are given leave to amend within thirty days after rescript by setting out the modified contract.’ The court may, at any time before final judgment, allow amendments to enable the plaintiff to sustain the action for the cause for which it was intended to be brought. G. L. c. 231, § 51. For the application of this statute to suits in equity, see King v. Howes, 181 Mass. 445, 63 N. E. 1062. The amendment...