Home NATIONAL DEVELOPMENT COMPANY vs. ELLEN GRAY & another, administrators, & another.

315 Mass. 127

October 6, 1943 - December 1, 1943

Essex County

Present: FIELD, C.J., LUMMUS, DOLAN, COX, & RONAN, JJ.

A trial judge, after hearing part of the issues in a suit in equity, had no power under either Section 30 or Section 31 of G. L. (Ter. Ed.) c. 214 to report the suit upon the evidence heard by him and his findings of fact and rulings of law without having entered any interlocutory decree or order.

BILL IN EQUITY, filed in the Superior Court on February 19, 1941.

The suit originally was brought against Oscar L. Lawson and the Lawson-Porter Shoe Machinery Corp. Upon suggestion of the death of the defendant Lawson, the administrators of his estate, Ellen Gray and A. Arnold Lawson, were permitted to defend in his stead.

The suit was heard by Greenhalge, J.

L. Withington, (L. G. Miller with him,) for the defendants.

H. D. Linscott, for the plaintiff.


COX, J. The plaintiff, in its bill in equity, asks that the defendants be required to assign to it certain patent rights, that they be enjoined from making any use of these rights, and for an accounting. Such evidence as was taken is reported. The trial judge made a "STATEMENT OF FINDINGS, RULINGS AND ORDER FOR A DECREE," in which, however, he stated that he made "no order for a decree, interlocutory or final, for two reasons, first because at the hearing the parties agreed that the question of damages should be left open, if there was liability, to be further heard by the court or referred to a master and second because the question is not free from doubt and the parties may prefer to have the liability passed upon by the Supreme Judicial Court before any hearing upon damages is had, in which case . . .[he was] prepared to report the question under the statute." The judge also stated: "I think that

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the plaintiff is entitled to relief" by way of assignment of patent rights and injunction and also to an accounting. The record contains a statement entitled "REPORT" which is signed by the judge and in which this appears: "This cause came on to be heard and after hearing and argument I made certain findings of fact and rulings but made no order for decree for reasons stated and I now report the case for the consideration of the Supreme Judicial Court upon the pleadings, the evidence and my findings of fact and rulings of law, such decree to be entered as justice and equity may require." Apart from orders as to the use of the exhibits, nothing else appears in the "REPORT." The record contains nothing that relates to the matter of an accounting.

General Laws (Ter. Ed.) c. 214, Section 30, provides for the report, by a judge of this court or the Superior Court, of an interlocutory decree or order to this court in certain circumstances. But no decree or order was here made, and it is apparent that this failure was intentional. It is apparent that the "REPORT" was not made in pursuance of the power conferred by Section 30. Section 31 of said c. 214 provides that a justice of either court by whom a case is heard "for final decree" may reserve and report the evidence and "all questions of law therein" for the consideration of the full court; and thereupon like proceedings shall be had "as upon appeals from final decrees." Apart from these statutory provisions, suits in equity can come to this court from the Superior Court only by way of appeal.

The case of Dunlop v. Claussen, 313 Mass. 715 , was brought to this court on a so called reservation and report under G. L. (Ter. Ed.) c. 215, Section 13, a statute closely similar to Section 31 of said c. 214, but which relates only to Probate Courts. It was there said, at page 716, that "Section 13 -- the sole source of the power to report -- is limited to two classes of cases: (a) cases in which interlocutory decrees or orders have been made, and (b) cases that have been `heard for final determination,' in which cases the judge may `reserve and report the evidence and all questions of law therein for consideration of the full court, and thereupon like proceedings shall be had as upon appeal.'" It was held

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that the case did not come within the first of these classes and that the report did not conform to the requirements for a report in the second class of cases. It was said with respect to the second class at pages 716-717: "In such a case there must be a report of the entire case and not merely a part thereof. Agoos v. Cosmopolitan Trust Co. 241 Mass. 103 , 106. . . . A probate judge has no power to report a part of a case -- unless after an interlocutory decree or order -- merely by reason of the possibility that a decision of that part of the case might finally dispose of the entire case." What was there said is applicable to the suit at bar. Taft v. Stoddard, 141 Mass. 150 . Hildreth v. Thibodeau, 186 Mass. 83 , 85. Daly v. Foss, 209 Mass. 470 , 473-474. See Cronan v. Cronan, 286 Mass. 497 , 499; Gulesian v. Richardson, 306 Mass. 184 , 186; Orth v. Paramount Pictures, Inc. 311 Mass. 580 , 581-582; Curran, petitioner, 314 Mass. 91 , 93-94.

The judge was without jurisdiction to do what was attempted here.

Report dismissed.