Home HARRY SIEGEL & others.

309 Mass. 553

July 10, 1941

Petition dismissed. Ordered that a copy of this rescript be transmitted to the clerk of the Superior Court for the county of Suffolk where the original case of Samuel Weisberg vs. Harry Siegel is pending. This is a petition, filed in this court on March 13, 1941, by the defendants in the case of Weisberg v. Siegel, to establish the truth of exceptions disallowed in the Superior Court. The procedure is governed by G. L. (Ter. Ed.) c. 231, Section 117. and Rule 6 of the Rules for the Regulation of Practice before the Full Court (1926), 252 Mass. 587 . The statute and rule must be strictly followed or a petition cannot be considered. Thorndike, petitioner, 244 Mass. 429, 431. See also Bishop, petitioner, 208 Mass. 405, 406-407; Bullock, petitioner, 254 Mass. 14, 15. The rule provides that a petition must be filed in this court "within twenty days after notice of such refusal" to "allow and sign" a bill of exceptions. Facts bringing the petition within this rule must be alleged therein. The petition fails in this respect. The notice referred to in Rule 6 is notice in the Superior Court, and -- apart, at least, from actual notice (see Thorndike, petitioner, 252 Mass. 154, 155; Home Owners' Loan Corp. v. Sweeney, ante, 26, 30) -- is notice in conformity with the rule of that court. Rule 74 of the Superior Court (1932) requires notice by the clerk to the parties of the disallowance of a bill of exceptions. In the absence of an allegation in the petition to the contrary it must be assumed that the clerk performed his duty in this respect. Flynn, petitioner, 265 Mass. 310, 314. This duty could have been performed by mailing a notice in conformity with Rule 3 of that court. Such a notice is deemed to have been given when mailed Checkoway v. Cashman Brothers Co. 305 Mass. 470, 471. Lincoln Electric Co. v. Sovrensky, 305 Mass. 476, 477. See also Gloucester Mutual Fishing Ins. Co. v. Hall, 210 Mass. 332, 335; Bath Iron Works, Ltd. v. Savage, 262 Mass. 123, 126, 127. Cases cited in Regan v. Atlantic Refining Co. 304 Mass. 353, 354, are inapplicable under Rule 3. The petitioners allege that the bill of exceptions was disallowed on February 18, 1941. There was ample opportunity for the clerk to mail a notice of disallowance of the bill of exceptions more than twenty days before March 13, 1941. Neither the allegation in the petition that notice was received by counsel for the defendants on February 24, 1941, nor any other allegation therein directly, or even by implication, tends to show that notice was not so mailed. Seasonable filing of the petition, therefore, is not alleged. Whether in any other respect the petition fails to conform to the governing statute and rule need not be considered.


309 Mass. 553

September 8, 1941

Interlocutory decrees affirmed as of an appropriate date between April 15, 1940, and September 17, 1940. Final decree affirmed as

Page 554

of an appropriate date between April 15, 1940, and September 17, 1940, with costs against the plaintiffs other than Edwin F. Dwelley, and with costs against him incurred prior to his death on September 17, 1940. This suit in equity was heard by a single justice of this court. Interlocutory decrees and a final decree dismissing the bill were entered in March, 1940. The plaintiffs appealed from each of these decrees in April, 1940, in each instance on or before April 15, 1940. The appeals were entered in the full court October 15, 1940. The case was argued in the full court December 2, 1940, and was decided by the court April 3, 1941. The rescript read: "Interlocutory decrees affirmed. Final decree affirmed with costs." See 308 Mass. 531. No decrees after rescript have been entered. It has now been brought to the attention of the court that Edwin F. Dwelley, one of several plaintiffs in the suit, died September 17, 1940. So far as appears this fact was not known to counsel prior to the argument of the case in the full court. Counsel for the defendants now request, in substance, the withdrawal of the original rescript and the substitution therefor of a rescript ordering the decrees affirmed as of a date prior to the death of the plaintiff Edwin F. Dwelley. Counsel for the other plaintiffs and the administrator of the estate of said Dwelley have been given opportunity to file briefs in opposition to the granting of the request of defendants' counsel. The time fixed for filing such briefs has expired and no brief has been filed by or in behalf of the administrator of the estate of said Dwelley. Counsel for the other plaintiffs states that he does not object to the granting of the request of defendants' counsel. This is a proper case for the entry of decrees nunc pro tunc. The rights of the defendants as fixed by the decrees entered by the single justice were established during the lifetime of the plaintiff Edwin F. Dwelley subject to the plaintiffs' rights of appeal from such decrees. These appeals were not perfected by entry of the appeals in the full court before the death of the plaintiff Edwin F. Dwelley. The appeals of this plaintiff were entered without authority and should have been dismissed. Whether this is a case in which all parties aggrieved by the decrees were required to unite in appeals therefrom or the appeals of the other plaintiffs might have been dismissed without consideration of the case on the merits need not be considered. Barnes v. Barnes, 291 Mass. 383, 386. The appeals have been argued by counsel for the surviving plaintiffs -- formerly also counsel for the plaintiff Edwin F. Dwelley -- and considered on their merits with a resulting decision substantially the same as if the appeals had been dismissed, namely, that the decrees entered by the single justice should be affirmed. No decrees adverse to the plaintiff Edwin F. Dwelley can be entered as of a date subsequent to his death. Barnes v. Barnes, 291 Mass. 383, 385. Though counsel for the surviving plaintiffs could not technically represent said Dwelley or his estate in the argument of the case in the full court after his death, it would have been proper, if his appeals had been rightly before the court, to regard such counsel as having been heard on the merits as amicus curiae in behalf of him or his estate. Barnes v. Barnes, 291 Mass. 383, 385. In the circumstances of the case, therefore, in order to preserve to the defendants the fruits of the decision in their favor by the single justice that has been held by this court after full argument and consideration to be correct, the decrees originally entered should be affirmed as of an appropriate date after April 15, 1940, and before September 17, 1940, the date of the death of said Dwelley. Perkins v. Perkins, 225 Mass. 392, 396-397, and cases cited. Barnes v. Barnes, 291 Mass. 383, 386. DesLaurics v. Shea, 300 Mass. 30, 40-41. This rescript, therefore, is substituted for the rescript previously issued.