Home THE BOSTON FIVE CENTS SAVINGS BANK vs. F. DAVID JOHNSON & another.

3 Mass. App. Ct. 790

December 5, 1975

The plaintiff holds a mortgage with a statutory power of sale given by the defendants on land in Weston. Pursuant to St. 1943, c. 57, as amended by St. 1945, c. 120, and St. 1959, c. 105, the plaintiff brought a bill seeking authorization to foreclose the mortgage. Notice issued to the defendants and "all persons entitled to the benefit of the Soldiers' and Sailors' Civil Relief Act of 1940 as amended" (50 U. S. C. App. Section 501 et seq., as amended). The defendants filed an appearance and answer which were struck on the plaintiff's motion. Subsequently, a motion by the plaintiff to take the bill pro confesso was allowed pursuant to which an interlocutory decree was entered. The judgment which followed authorized the plaintiff to make entry and sell the property covered by the mortgage. The defendants then filed a document which purports to be an appeal from the interlocutory decree (but see G. L. c. 231, Section 113, as amended through St. 1973, c. 1114, Section 202; Foreign Auto Import, Inc. v. Renault Northeast, Inc. 367 Mass. 464 , 467-471 [1975]), but which we treat as an appeal from the final judgment. However, the defendants have failed to demonstrate that they have standing in this proceeding since the record does not indicate that any of them is entitled to benefits under the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, and their appearance and answer were, therefore, properly struck. See St. 1959, c. 105; Beaton v. Land Court, 367 Mass. 385 (1975).

Judgment affirmed.

Home LEONARD L. LUSSIER vs. COMMISSIONER OF CORRECTION, & others.

3 Mass. App. Ct. 790

December 5, 1975

The plaintiff in this action for declaratory relief, who was paroled from a sentence of twenty-seven years to life to a shorter, from-and-after sentence which has since expired, contends that the judgment entered is erroneous by reason of its holding that the longer sentence has not expired and that he is not entitled to a discharge therefrom. The contention is based on a misreading of G. L. c. 279, Section 8A, which clearly states that a previous sentence shall be deemed to have expired when a prisoner is paroled therefrom "[f]or the purpose only of determining the time of the taking effect" of the from-and-after sentence. To hold that the previous sentence has expired for all purposes would be to flout the express limitation of the statute. There is nothing in G. L. c. 279, Section 8A, or in Dolan's case, 101 Mass. 219 (1869), Harding v. State Bd. of Parole, 307 Mass. 217 (1940),

Page 791

Brown v. Commissioner of Correction, 336 Mass. 718 (1958), or Carlino v. Commissioner of Correction, 355 Mass. 159 (1969), which supports the plaintiff's position.

Judgment affirmed.