Home L. RUDOLPH ELECTRICAL CO., INC., & others [Note 1] vs. GIBBS OIL COMPANY & another. [Note 2]

16 Mass. App. Ct. 995

September 30, 1983

William Coniaris for Gibbs Oil Company.

Jonathon D. Friedmann (James L. Rudolph with him) for the plaintiffs.

1. There is no occasion for considering the separate judgment entered against the defendant Goodoak on August 25, 1982, for the reason (if no other) that the defendant Gibbs was not harmed by that judgment. 2. Gibbs became a "judgment lien creditor" within the meaning of 26 U.S.C. Section 6323(a) (1976) and 26 C.F.R. Section 301.6323(h)-1(g) (1978) as soon as (1) the judgment against Goodoak was entered in the original action in the Superior Court (see Smola v. Manuel Camara, Jr. Ins. Agency, ante 908, 909 [1983]) on October 24, 1978, and (2) the writ of attachment which was issued on that judgment was recorded in the appropriate registry of deeds on October 30, 1978. See, e.g., United States v. New Britain, 347 U.S. 81, 84 (1954); Hartford Provision Co. v. United States, 579 F.2d 7, 9 (2d Cir. 1978). Section 6323(a) is explicit that the lien obtained by Gibbs was superior to that asserted by the Internal Revenue Service because no notice of the later lien was recorded in the registry (see Section 6323 [f][1][A][i] [1976]) until November 17, 1978. See, e.g., United States v. New Britain, 347 U.S. at 85-86; United States v. Acri, 348 U.S. 211, 212-213 (1955); United States v. Pioneer Am. Ins. Co., 374 U.S. 84, 87-92 (1963); United States v. Equitable Life Assur. Soc., 384 U.S. 323,

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327-329 (1966). The decision below fails to recognize that earlier provisions of Massachusetts law concerning the relationship between appellate review and the time for the entry of judgment such as G. L. c. 231, Section 113, as in effect prior to St. 1973, c. 1114, Section 202, and Rule 79 of the Superior Court (1954) were distinctly supplanted effective July 1, 1974, by entirely different provisions such as those now found in G. L. c. 231, Section 113, as appearing in said Section 202, in Mass.R.Civ.P. 54(a), 365 Mass. 820 (1974), in Mass.R.Civ.P. 58(a), as amended effective January 1, 1977, 371 Mass. 908 , and in Mass.R.A.P. 3(a) and 4(a), as amended effective July 1, 1979, 378 Mass. 927 , 928. There is nothing in Mass.R.Civ.P. 62(a) or (d), 365 Mass. 829 , 830 (1974), in G. L. c. 235, Section 16, as appearing in St. 1975, c. 377, Section 117, or in Mass.R.A.P. 28, as amended effective July 1, 1979, 378 Mass. 925 , which supports the notion that the finality accorded a judgment entered under Mass.R.Civ.P. 54(a) and 58(a) is undermined by the mere taking of an appeal in a case such as the present, in which the judgment was affirmed on appeal. See Gibbs Oil Co. v. Goodoak, 8 Mass. App. Ct. 947 (1979). [Note 3] 3. None of the other points which have been argued requires any discussion. 4. The judgment which was entered in the present action on April 30, 1982, is reversed, and a new judgment is to be entered which is consistent with part 2 hereof. Costs of appeal are not to be awarded to any party.

So ordered.


[Note 1] Angelo B. Veneziano and Gloria B. Veneziano.

[Note 2] Robert D. Goodoak.

[Note 3] None of the amendments of the rules which have been cited in this part of the opinion has effected any change in the provisions as they stood in 1978.