Home BRIGHAM'S CAFE, INC. vs. SUPERIOR COURT.

337 Mass. 767

February 27, 1958

Petition dismissed. The petitioner appeals from the refusal of a single justice to issue an order of notice upon a petition for writ of mandamus. The petition seeks an order to "the Superior Court to cause adequate orders to be entered and enforced to compel the restoration of the property of the petitioner taken from the control and custody of the court through its receiver." It is alleged that in April, 1954, in the Superior Court a receiver of the petitioner's assets was appointed; that in January, 1956, the order was vacated; that in the meantime a third person, whose name is given, interfered with those assets; that his acts constituted contempt; that the plaintiff filed a "petition for contempt of court"; but that a judge of the Superior Court refused to issue an order of notice. It does not appear that any appeal from any order of the Superior Court was taken. The petition for a writ of mandamus plainly will not lie as a substitute for ordinary appellate procedure. Rines v. Justices of the Superior Court, 330 Mass. 368 , 371-372. Further, this remedy is in large sense discretionary. Nichols v. Dacey, 329 Mass. 598 , 600-601.

Home MYER L. ORLOV & others vs. ANGUS M. MACNEIL & others.

337 Mass. 767

February 27, 1958

Appeal dismissed. Exceptions overruled. This is an action of contract in which the plaintiffs recovered judgment against the defendant MacNeil in the sum of $10,079.12, on which an indorsement of satisfaction in the sum of $7,959.40 was made. The defendant MacNeil filed a motion for orders for compliance with G. L. (Ter. Ed.) c. 235, Section 17, as amended by St. 1948, c. 113, which was denied. At the hearing on the motion no evidence as such was presented except an affidavit and the execution and papers in prior cases. The trial judge made the statement: "Counsel for the defendant referred to proceedings in the instant case and another case in the Superior Court and a decision of the Supreme Judicial Court and argued therefrom that the judgment and judgment entered were satisfied in full; examination of the records referred to, in my opinion, does not warrant a finding or ruling that the judgment has been satisfied in full or the execution issued thereon. In consequence thereof, I deny the motion." The defendant MacNeil excepted and appealed. His bill of exceptions has been allowed. We shall dismiss the appeal. We consider the exceptions which on this record fail to show error.

Home MARTIN EDWARD, INC. vs. DISTRICT COURT OF SOMERVILLE.

337 Mass. 767

February 27, 1958

Order sustaining demurrer affirmed. Judgment affirmed. This is a petition for a writ of mandamus filed in the Supreme Judicial Court for the County of Suffolk. A demurrer to the petition on the ground that there was a plain and adequate remedy at law was sustained, and judgment was entered dismissing the petition. The petitioner appealed. The petition alleges that an action was brought in the District Court of Somerville against a fire insurance company; that an answer in abatement was heard and sustained; that such action was improper because the fire insurance company had been previously defaulted; and that judgment should have been entered for the petitioner. The prayers, in so far as we understand them, seem to be to require the District Court to comply with the requirements of law, and to issue execution and, in the alternative, to make findings so that proper review may be had in the Appellate Division. There was no error. This proceeding cannot be used as a substitute for ordinary appellate procedure. Rines v. Justices of

Page 768

the Superior Court, 330 Mass. 368 , 371-372. Another aspect of this controversy was before us in Martin Edward, Inc. v. Appellate Division for the Northern District, 336 Mass. 52 .