Home JOHN J. KLIER & others vs. BUILDING INSPECTOR OF LAWRENCE & another.

333 Mass. 111

April 5, 1955 - September 19, 1955

Essex County

Present: QUA, C.J., RONAN, SPALDING, WILLIAMS, & COUNIHAN, JJ.

The concluding words "Petition dismissed" in a decision filed by the judge in a mandamus case before the case was ripe for judgment had no greater effect than an order for judgment.

A mandamus case, upon the filing of the judge's decision, did not become ripe for judgment until the expiration of the times for claiming an appeal under G. L. (Ter. Ed.) c. 231, Section 96, if such an appeal lay, for claiming exceptions under Rule 72 of the Superior Court (1954), and for filing under G. L. (Ter. Ed.) c. 231, Section 113, a bill of exceptions based on exceptions taken at the trial, and went to judgment under Rule 79 of the Superior Court (1954) on the Monday following the expiration of such times; and an appeal from the judgment under G. L. (Ter. Ed.) c. 213, Section 1D, inserted by St. 1943, c. 374, Section 4, claimed within twenty days after that Monday was seasonable.

The provision of Rule 79 of the Superior Court (1954) authorizing the entry of judgment at times other than those fixed by the rule does not empower the court to shorten the twenty day period allowed by G. L. (Ter. Ed.) c. 231, Section 113, for filing a bill of exceptions.

PETITION for a writ of mandamus, filed in the Superior Court on October 8, 1953.

The petitioners alleged an exception to and appealed from the allowance of a motion by Hudson, J., as described in the opinion.

Andrew A. Caffrey, (Joseph F. Bacigalupo with him,) for the petitioners.

Carlton W. Spencer, (Roland E. Shaine with him,) for the intervener.

James P. Kane, City Solicitor, for the respondents.

Page 112


SPALDING, J. This petition for a writ of mandamus was brought to compel the city clerk of Lawrence to expunge from his record a vote of the city council amending the city's zoning law by reclassifying a district, and to compel the building inspector of the city to enforce the zoning law as it existed prior to the purported amendment. Eaton, Inc., an owner of land affected by the amendment, was allowed to intervene as a respondent.

On July 13, 1954, after a hearing on the merits, the trial judge filed a paper with the clerk entitled "Findings of Fact, Rulings of Law," the concluding words of which were "Petition dismissed." On August 25 the petitioners claimed an appeal under "section 1D of . . . [G. L. (Ter. Ed.) c. 213, inserted by St. 1943, c. 374, Section 4] from the final judgment . . .."

The intervener moved to dismiss the appeal on the ground that it was not seasonable, and the motion was allowed. The petitioners duly excepted to this action and they also claimed an appeal, presumably under G. L. (Ter. Ed.) c. 231, Section 96, and the case comes here on a bill of exceptions and by appeal. The only question sought to be raised is whether the allowance of the motion to dismiss the appeal under Section 1D was right. Since this issue is fully presented by the bill of exceptions there is no need to consider the appeal under Section 96.

The petitioners were appealing under the provisions of G. L. (Ter. Ed.) c. 213, Section 1D, inserted by St. 1943, c. 374, Section 4. Such an appeal must be from a "final judgment." Needham v. County Commissioners of Norfolk, 324 Mass. 293 , 295. We assume that the words "Petition dismissed" at the end of the judge's decision would, if the case had then been ripe for judgment, have been apt to indicate the entry of a final judgment. See Reardon v. Director of Civil Service, 318 Mass. 173 ; Barry v. Civil Service Commission, 323 Mass. 431 , 435; Sunderland v. Building Inspector of North Andover, 328 Mass. 638 , 639; Feener Business Schools, Inc. v. Board of Collegiate Authority, 329 Mass. 170 , 171. The question, therefore, narrows down to whether

Page 113

on July 13, when the judge filed his decision containing these words, the case was ripe for judgment. We are of opinion that it was not and that these words can have no greater effect than an order for judgment, for the judge rendered his decision before the expiration of the time fixed for appeal in a proper case under G. L. (Ter. Ed.) c. 231, Section 96, and before the expiration of the time fixed for taking exceptions to rulings made in the absence of counsel. Watts v. Watts, 312 Mass. 442 , 449. Burnham v. Dollard, 269 Mass. 530 . Rule 72 of the Superior Court (1954). Whatever doubts there may have been formerly on the question (see Needham v. County Commissioners of Norforlk, 324 Mass. 293 , 295) it is now settled that certiorari and mandamus cases heard in the Superior Court, both of which are on the law side of the court, may come here by appeal under Section 96. Adamsky v. City Council of New Bedford, 326 Mass. 706 . Mayor of Beverly v. First District Court of Essex, 327 Mass. 56 , 58. Hannigan v. Board of Appeals of Lowell, 328 Mass. 366 .

Moreover, the petitioners under G. L. (Ter. Ed.) c. 231, Section 113, would have had twenty days after the receipt of notice of the decision within which to file a bill of exceptions based on exceptions taken during the trial. That portion of Rule 79 which authorizes the entry of judgment at times other than those fixed in the rule does not empower the court to shorten the period allowed by Section 113 for filing exceptions. Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460 , 462.

Thus the petitioners had at least twenty days from July 13, or until August 2, within which to file exceptions, and they could also have claimed an appeal under this section 96 within this period, for the appeal under this section is not from the judgment, as in the case of an appeal under c. 213, Section 1D, but from the order for judgment. Since they did neither, the case was ripe for judgment on August 3, and went to judgment on the following Monday, August 9. Rule 79 of the Superior Court (1954). The petitioners

Page 114

under c. 213, Section 1D, had twenty days from that date, or until August 29, within which to appeal. [Note p114-1] It follows that their appeal on August 25 was seasonable.

Exceptions sustained.

Appeal dismissed.


FOOTNOTES

[Note p114-1] See G. L. (Ter. Ed.) c. 214, Section 19, which is made applicable to appeals under Section 1D.