West v. Johnson

• Decision Date: 04 December 1925
• Citation: 254 Mass. 161,149 N.E. 710
• Parties: WEST v. JOHNSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 161

149 N.E. 710

WEST

v.JOHNSON.

Supreme Judicial Court of Massachusetts, Essex.

Dec. 4, 1925.

Appeal from Probate Court, Essex County; H. R. Dow, Judge.

Proceeding in probate court by William C. West against William G. Johnson, executor of the estate of Nathaniel West. From a final decree, appeal was taken to the Supreme Judicial Court. Motion to dismiss appeal was denied, and appeal taken from such denial. Order denying motion reversed.

C. F. Lovejoy, C. C. Bucknam, and H. N. Berry, all of Boston, for petitioner.

R. W. Hale, of Boston, for respondent.

RUGG, C. J.

This is a motion filed in the probate court to dismiss an appeal from a final decree entered in that court, because not seasonably entered in the Supreme Judicial Court. The motion was denied. Appeal was taken from that denial. The judge made findings of fact to this effect: Final decree was entered on June 23, 1925; appeal was claimed on June 25; report of material facts found by the judge was filed on July 22. ‘It is agreed that on September 3, 1925, when said motion to dismiss was filed, no order had been given by said respondent to the register of probate to prepare proper copies of papers in the proceeding for transmission to the Supreme Judicial Court. On October 6, 1925, there was a hearing upon said motion to dismiss the appeal, and on the same day said respondent filed with the register of probate all papers necessary to said appeal and requested the register to prepare copies thereof and transmit them to the Supreme Judicial Court as required by the statute pertaining thereto.’ G. L. c. 231, §§ 135, 144; chapter 215, § 10.

These are all the material facts. They show that the imperative requirement of the statute that such an appeal must be entered as soon as may be in this court has not been satisfied. The case at bar is governed by Griffin v. Griffin, 222 Mass. 218, 110 N. E. 296;Bentley v. Ward, 116 Mass. 333;Robinson v. Donaldson, 251 Mass. 334, 147 N. E. 679;Silverstein v. Daniel Russell Boiler Works, 251 Mass. --, 149 N. E. 705;Mazzuchelli v. Seretto, 251 Mass. --, 149 N. E. 707;Crawford v. Roloson, 251 Mass. --, 149 N. E. 707.

Order denying motion reversed.