OLD COLONY STREET RAILWAY COMPANY v. S. LOUISE THOMAS & another. SAME v. THEODORE B. THOMAS & another.

TWO PETITIONS , filed in the Land Court on January 22, 1904, and on February 4, 1907, respectively, for the registration of the title to certain contiguous parcels of land and flats in Quincy.

In the first case, after a general default had been entered by the Land Court on February 16, 1906, as to "all parties defendant, whether named in the notes or not who have not appeared or answered," Theodore B. and S. Louise Thomas on November 30, 1906, with the consent of the petitioners filed separate answers. The case was expressly assigned by the Land Court for a trial on June 6, 1907, and the respondents then were defaulted and a decree of confirmation and registration of title in the petitioner was entered on June 19, 1907, from which the respondents Thomas appealed to the Superior Court. The judge of the Land Court framed issues for the trial in the Superior Court and also filed a report of his findings. On October 15, 1908, the petitioner filed in the Superior Court the motion to dismiss the respondents' appeal from the decree of the Land Court, which is described in the opinion. The motion was heard and allowed by Crosby, J.; and the respondents alleged exceptions.

In the second case, there was a full hearing on the merits in the Land Court and a decree for the petitioner on January 15, 1908, from which the respondents Theodore B. and S. Louise Thomas claimed an appeal to the Superior Court. According to the docket of the clerk of the Superior Court for the county of Norfolk, the appeal papers were filed in the clerk's office on February 14, 1908. The petitioner moved to dismiss the appeal on the ground that it was not entered within thirty days after the decision appealed from, and also moved that the record of the clerk of courts be corrected, because the appeal papers were not entered in the clerk's office until February 15, 1908. Attached to the latter motion was an affidavit of Robert B. Worthington, assistant clerk of courts for the county of Norfolk, in which he stated: "In the evening of February 14, 1908, after the office of the clerk of courts for the county of Norfolk was

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closed, somebody, I don't know who it was, in behalf of Harvey H. Pratt [attorney for the respondents], came to my house with certain papers now on file in this court under said number. This was, I think, while I was at my evening meal, and was, I should say, about seven o'clock in the evening. At the same time he gave me the entry fee of $3. I received the papers and the money, and, the next morning, took them to the office of the clerk of courts in Dedham, and entered said papers, . . . stamping them as of the previous day. These papers are now included in the papers in said case. The office of the clerk of courts of said county closes at 5 P. M." At the hearing on the motions by Crosby, J., the petitioner offered to prove the facts stated in the affidavit, but the judge refused to admit the evidence and denied both motions. The petitioner appealed.

In the second case as in the first, the petitioner filed in the Superior Court a further motion to dismiss the appeal from the Land Court on grounds similar to those stated in the opinion as to the first case. The motion was heard by Crosby, J., and allowed; and the respondents alleged exceptions.

The respondents having delayed entering in this court their exceptions to the order of the Superior Court dismissing their appeals from the decisions of the Land Court in the two cases, on motion of the petitioner it was ordered that the exceptions be entered in this court on or before January 1, 1910, and, if they were not so entered, that the exceptions "shall thereupon be overruled and the rulings and orders excepted to affirmed unless the court, for good reason, extends the time." The respondents did not enter their exceptions in this court until January 3, 1910, and, on motion of the petitioner, this court dismissed the exceptions. The petitioner thereupon moved in each case that, the order as to the entry of the exceptions on or before January 1, 1910, not having been complied with, "the final decision of" the Superior Court "be certified to the Land Court," and the respondents moved in each case that the order as to the entry of their exceptions on or before January 1, 1910, be revoked and that the time for such entry be extended to and including January 24, 1910. The petitioner's motions were denied and the respondents' motions were allowed by Pierce, J.; and the petitioner appealed.

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H. H. Pratt, for the respondents.

Asa P. French, ( W. A. Rollins with him,) for the petitioner.

Knowlton, C. J. These are appeals and exceptions in two cases brought in the Land Court for the registration of titles. We will consider first the appeal in each case from the order of the Superior Court, made on January 21, 1910, revoking an order of November 29, 1909, that the exceptions be entered in the Supreme Judicial Court on or before January 1, 1910, and in default thereof that they be overruled and the rulings and orders excepted to affirmed, unless the court, for good reason, should extend the time. The respondents having failed to enter the exceptions within the time prescribed, and having entered them afterward without a further order, they were dismissed upon motion by the Supreme Judicial Court. Thereupon the petitioner filed in each case a motion that the final decision be certified to the Land Court, and the respondents filed a motion that the order of November 29 be revoked, and the time for entering the exceptions be extended. The court denied the former and allowed the latter of these motions, and the petitioner appealed in each case.

The cases were pending in the Superior Court after the order of the Supreme Judicial Court dismissing the exceptions. No final judgment or order had been entered in the Superior Court in pursuance of the order of November 29, and the cases were there for disposition. It was therefore in the power of the Superior Court to deal with them in any proper way, and to revoke the former order if good reason was shown for so doing. The appeal is not well founded, and the last order of the Superior Court is affirmed.

In the first of these cases there was a decision in favor of the petitioner and an order for the registration of the title in the Land Court, from which the respondents appealed to the Superior Court. Issues were framed by the Land Court for trial in the Superior Court, as required by the statute. The petitioner filed in the Superior Court a motion for the dismissal of the appeal, which was allowed, and exceptions were taken from the order of dismissal. The reasons for the motion to dismiss were stated therein as follows:

"First, because the report of the judge of the Land Court is

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not a full report of the facts found by him so far as they relate to, or bear upon, any questions involved in this appeal, and does not comply with the requirements of St. 1905, c. 288, and the petitioner is thereby deprived of the benefit of the presumption in its favor which the statute undertakes to secure to it.

"Second, because the judge of the Land Court has made no specific finding upon the issues, or either of them, framed for this court upon this appeal.

"Third, because it does not appear that the issues framed for the jury in this court were material to the decision of the Land Court, from which this appeal was taken.

"Fourth, because there was no trial in the Land Court upon the facts.

"Fifth, because it does not appear that the decision of the Land Court was based upon any disputed issue of fact.

"Sixth, because it appears that the decision of the Land Court was based upon a question of law, and not of fact.

"Seventh, because it appears that the decision of the Land Court was based solely upon an inspection of the record title to the land described in the petition, and involved only the construction of the conveyances and other instruments forming the chain of that title, and that error, if any, in said decision of the Land Court, was error of law and not of fact, the remedy for which is by appeal or exceptions to the Supreme Judicial Court, and not by appeal to this court."

The report of the judge of the Land Court [Note p534-1] states briefly the

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important matters that occurred at the hearing before him, and it is sufficient under the statute. The facts that the respondents had been twice defaulted before him, and that they failed to offer evidence of the matters averred in their answers, are reasons why the report does not deal with the issues in such detail as it otherwise would. The first reason stated in the motion is insufficient.

The judge was not obliged to make specific findings upon the issues framed for the Superior Court, as it is assumed in the second reason that he was. The issues were not framed until after his findings had been made.

To the third, fourth, fifth, sixth and seventh of the reasons, the answer is that the judge framed issues for the Superior Court, and this official act establishes prima facie the proposition that they are pertinent and ought to be tried. In this record there is nothing to show that they were not material to the decision of the judge, nor that his decision was not founded in part upon questions of fact. It is to be assumed that all material facts were considered and passed upon in the Land Court.

In the long and elaborate decision and in the report in the second case there are statements which make it seem probable that these issues are immaterial, and that the answers to them would not affect the decision of the Land Court in this first case, which, except in the particulars referred to in these issues, is not appealed from. But the decision and the report in that case, although founded in part upon the same facts as the decision in this, are not a part of the record in this first case, and cannot be considered in the decision of it. It follows that the judge of the Superior Court was wrong in dismissing this appeal, upon the record before him, and the exception to his order must be sustained.

In the second case a bill of exceptions was filed by the petitioner, founded on the adverse decision of the judge upon its motion in the Superior Court to prove facts and to have the record amended, and to dismiss the respondents' appeal because it was not entered within the time prescribed by the statute. It appears upon the affidavit of the assistant clerk of the Superior Court — and the petitioner offered proof of these facts — that the appeal papers, which were to be filed on February 14, 1908,

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were taken to the house of the assistant clerk in the evening of that day, and handed to him there, and were not taken to the clerk's office until February 15, when they were marked as entered on February 14. The principal question raised by these exceptions is whether it is an entry of an appeal in the Superior Court, within the meaning of the statute, to hand the papers to the clerk of the court, or to any one of the assistant clerks, when he is away from the clerk's office, at any place where he happens to be found within the county. Entries of different appeals might be made in different remote parts of the county at the same time, if the papers were handed to the clerk and to different assistant clerks who were found in these places, and some of them might not appear of record for days afterward, if it happened to suit the convenience of one or more of these officers to remain away for a considerable time. The appeal is to be "entered within thirty days, . . . and upon the entry of the appeal the appellant shall file in the Superior Court copies of all material papers in the case, certified by the recorder." R. L. c. 128, § 13. The appeal is to the Superior Court, and is to be entered in that court. This plainly appears from the language of this section, from the St. 1905, c. 288, and from other parts of the statutes.

What is it to enter an appeal in the Superior Court and to file all material papers in that court? It cannot be less than to make the appeal and the papers a matter of record in the court. On the entry of the appeal the suit is pending in the appellate court. Every case pending there should be a matter of record from the moment of its inception in that court. The only place for making a record or for keeping a record of a case in the Superior Court is in the clerk's office, except as such records may be made in the court and kept for the time being in the court, when it is actually sitting elsewhere. "If the appellant does not duly prosecute his appeal within the time limited, the original order, decision or decree shall stand as if no appeal had been taken." R. L. c. 128, § 15. Suppose that, immediately after the expiration of the time limited, action is proposed to be taken upon the original decision or decree. How can it be determined whether the appeal has been prosecuted, except by an examination of the record in the clerk's office? If the papers are in the

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pocket of the clerk or one of the assistant clerks to whom they were handed, and if they never have been entered upon the records in the clerk's office, shall it be said that the appeal has been prosecuted within the meaning of the statute?

In the Estate of Giovanni Sbarboro, 63 Cal. 5, the question was whether a petition to revoke the probate of a will was seasonably filed. It was delivered to the judge at his private residence on the last day of the year allowed by the statute. The next morning he took it to the office of the clerk and directed him to file it as of the day before. It was held that, "as the petition had not been filed in the court within the year, it was too late to file it at all." A part of the decision in Edwards v. Grand, 121 Cal. 254, is said in the headnote to be, that "Delivery of an instrument to the proper officer at a place other than the office where it is required to be filed is not sufficient, even though the officer should indorse it as properly filed." See Schulte v. First National Bank of Minneapolis, 34 Minn. 48. Under recording acts, it is generally, and so far as we know universally, held that the instrument must be delivered at the recording office, and that delivery elsewhere will not constitute a record, even though the officer indorses it as filed at the time of delivery. See cases cited in 24 Am. & Eng. Encyc. of Law, (2d ed.) 99. We are of opinion that an entry of an appeal in the Superior Court, especially where there is a particular requirement that the papers must be filed in that court, means an entry with the proper officer of the court in the place where its records are kept, so that, if the clerk does his duty, it will immediately appear upon the records of the court that the entry has been made. We are of opinion that the receipt of the papers by the clerk or an assistant clerk of the court at his place of residence, at a distance from the office where the records of the court are made and kept, is not an entry in court, and that leaving the papers there, whatever indorsement the clerk puts upon them, is not a filing of them in the court. Most of the reasons of the rule relative to ordinary recording offices apply as well to such a filing and such records in the Superior Court. See Cheney v. Assessors of Dover, ante, 501, relative to the entry of an appeal from an application to the assessors for an abatement of a tax, and Orne v. Barstow, 175 Mass. 193. We are of opinion that

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this interpretation of the law will better protect the rights and interests of the people than a rule that would make a delivery of papers to an officer of the court at a place far away from the court, or from his office, an entry of an appeal in the court, and the filing of the papers in the court.

The provision of the R. L. c. 159, § 18, that "For hearings, and for making, entering and modifying orders and decrees in equity causes, by one justice, and for issuing writs in such causes, the courts shall always be open in every county, except on legal holidays," does not mean that there is a court which is open wherever a clerk or assistant clerk happens to be found, without the presence of any justice. It has no application to the question before us.

It is important to the rights of parties that such provisions of statutes should be strictly observed. Bergen v. Jones, 4 Met. 371, 377. Bartlett v. Slater, 183 Mass. 152, 153. Briggs v. Barker, 145 Mass. 287. Snow v. Dyer, 178 Mass. 393. De Bang v. Scripture, 168 Mass. 91.

Under the statute and the above decisions it is plain that, if the delivery of the papers to the assistant clerk at his residence, in the evening, was not an entry of the appeal in court and a filing of the papers in court, the evidence should have been received, the record amended, and the appeal dismissed as entered too late. We are of opinion that these exceptions of the petitioner should be sustained.

The parties have argued fully the respondents' exceptions in the second case, which present for our consideration the question whether the appeal was rightly dismissed for the reasons given. This bill of exceptions deals with the merits, and as we are of opinion that a proper consideration of it shows that the respondents could not have prevailed if the exceptions had been entered seasonably, we are inclined to discuss it briefly. One of its statements is in these words: "It was admitted that the only point raised by the issues framed by the Land Court in both cases was the location of the Vinal-Jenkins line, so-called." We infer that the issues in this case were dismissed on the ground that they were immaterial to the decision. This decision recites, as does also the report of the judge of the Land Court, referring to the description in the deed from the Riddle heirs to Newcomb,

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that "the controversy is not really material, however, because the boundary lines now in question were settled by subsequent deeds." In referring to the ingenuity of the parties in supporting opposing theories as to the location of boundaries in the old deeds, including the deed from Vinal to Jenkins in 1806, in which the Vinal-Jenkins line, so called, first appears, the judge says, in his decision, "However interesting, this does not seem to me to be either profitable or necessary because the later dealings of the parties settled the whole matter." The case deals with a large number of deeds of different lots, covering a period of more than one hundred years, conveying flats as well as upland, sometimes referring to plans that have been lost, and running lines, and referring to monuments which were not visibly marked. It is impossible now to locate some of these lines and boundaries with accuracy. The judge has made his decision depend upon the construction of two mortgages which were foreclosed, and through which the petitioner derives its title. One of these mortgages was made in 1854 and the other in 1876. The ruling as to the construction of these mortgages and the finding as to what passed under them, on which the decision depends, were not appealed from, either as to the law or the facts. While the matter upon this record may not be entirely clear, as we understand it, the finding of the jury as to the location of the Vinal-Jenkins line under the deed of 1806, if made and reported back to the Land Court, would have no bearing upon the decision, which rests entirely on the construction of the two mortgages. Were we to pass upon this bill of exceptions in the second case, the decision of the Superior Court in dismissing the appeal on the ground that the issues were immaterial, would seem to be correct. But our decision, sustaining the exceptions to the exclusion of evidence as to the time of the entry of the appeal and the filing of the papers, requires that the appeal in this case be dismissed as not seasonably entered.

Last order of the Superior Court affirmed; exceptions to the order dismissing the appeal in the first case sustained; exceptions to the order excluding evidence that the appeal in the second case was not seasonably entered sustained.