ELIPHALET J. FOSS vs. ZACHIAS R. ATKINS & others.
Land Court. Practice, Civil, Appeal.
Under St. 1902, c. 458, § 1, St. 1904, c. 448, § 8, and St. 1905, c. 288, on an appeal from the Court of Land Registration or the Land Court to the Superior Court, the issues for the jury must be framed in the court from which the appeal is taken, and such a framing of issues is necessary to complete the appeal.
LORING, J. This case comes up from the Superior Court upon a report. From the report it appears that on February 16, 1906, the Land Court entered a decree in favor of Atkins and against Foss. On March 16, 1906, Foss took an appeal to the Superior Court. On the same day he filed in the Land Court a paper entitled "Issue to the Jury." "Said paper entitled 'Issue to the Jury,' was not submitted to or approved by any judge of the Court of Land Registration, prior to the entering thereof in the Superior Court, and was in no way called to his attention, otherwise than by the aforesaid filing." On the next day, March 17, 1906, the appellant entered in the Superior Court his appeal and the paper entitled "Issue to the Jury," together with certified copies of all material papers.
The respondents made a motion in the Superior Court to dismiss the appeal on the ground that no issue for a jury was
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framed in the Land Court. The Superior Court ruled that the motion ought to be allowed and the appeal dismissed.
Under St. 1898, c. 562, § 14, St 1899, c. 131, § 2, and R. L. c. 128, § 13, issues for the jury in the Superior Court were to be framed in the Superior Court if either party within the time allowed for entering appearance claimed a jury. This was changed by St. 1902, c. 458, § 1. The language of that act is explicit in requiring the issues to be framed in what was then the Court of Land Registration, and which is now the Land Court. See St. 1904, c. 448, § 10. This change, originally made by St. 1902, c. 458, § 1, has been continued in force since then. St. 1904, c. 448, § 8. There is nothing to the contrary in St. 1905, c. 288.
The provision that issues shall be framed in the Land Court means that they shall be framed by the court on application to the court by the appellant, and until the appellant has brought his motion for the framing of issues to the attention of the court and has had them framed by the court his appeal is not complete. The framing of issues is as necessary to complete an appeal from the Land Court as is the filing of objections in case of an appeal from a probate decree, as to which see Bartlett v. Slater, 183 Mass. 152. The fact that the issues may be modified in the Superior Court, (as to which see Luce v. Parsons, 192 Mass. 8,) does not affect this conclusion.
The ruling of the Superior Court was right.
Appeal dismissed.
W. L. Williams, for the appellant.
G. A. King, for the appellees, submitted a brief.