Home PETITION FOR REVOCATION OF A DECREE FOR ADOPTION OF A MINOR.

341 Mass. 734

December 30, 1960

Decree affirmed. The petitioner agreed to the adoption of her daughter by documents dated about six months after the latter's birth in Essex County in May, 1953. The Catholic Charitable Bureau was sponsor for the child's adoption on January 22, 1957, by the respondents with whom the child has been since she was nine days old. The petition for the revocation of the adoption decree alleges that the respondents had no domicil in Essex County when they filed the petition for adoption and that the Probate Court there had no jurisdiction under G. L. c. 210, Section 1. The petition for revocation was dismissed and the petitioner has appealed. The docket indicates that the transcript of testimony before the probate judge was never filed with the register of probate. See Rule 19 of the Probate Court Rules (1959). When the probate judge did not approve the designation of the transcript as a part of the record on appeal, the petitioner failed to print the transcript as an appendix to her brief. See Rule 2 of the Rules for the Regulation of Practice before the Full Court (1952) as amended December 12, 1955, 328 Mass. 693 -695. The transcript thus is not before us. The probate judge, by what is in effect a report of material facts, found subsidiary facts which justify the conclusion that the adopting parents had a domicil in Essex County in 1953 which has continued (see Restatement 2d: Conflict of Laws, Tent. draft no. 2, April 22, 1954, Section 23) despite their physical absence from Massachusetts from time to time. A contrary conclusion, even if permissible, was not required by other subsidiary facts found.

Home JOHN STATUTO vs. PAULINE PHILLIPS (and a companion case [Note 1]).

341 Mass. 734

December 30, 1960

Order for judgment affirmed. These two actions of contract have been consolidated for purposes of appeal. A judge of the Superior Court, after hearing upon the report of an auditor whose findings of fact were to be final, made a "finding" in each case for the plaintiff which was in effect an order for judgment. Kuzmeskus v. Pickup Motor Co. Inc. 330 Mass. 490 , 494. The plaintiff, a stone mason, had done all the masonry work at the defendants' new residence. Among other things

Page 735

he had constructed a stone wall. The wall later cracked and bulged. The defendants claim recoupment. The sole question was whether the wall had been constructed by the plaintiff in a proper and workmanlike manner. The auditor concluded that it had been so constructed and made a general finding for the plaintiff. The defendant Pauline Phillips filed objections to the auditor's report which, pursuant to Rules 89 and 90 of the Superior Court (1954), were appended to the report. No motion to recommit for the correction of the alleged errors was made. Hence the objections have no standing before us. Murphy v. Nelson, 306 Mass. 49 , 53. Howland v. Stowe, 290 Mass. 142 , 145. The general finding that the wall was properly constructed impliedly disposes of the claim in recoupment. The general finding as to damages, not being based solely on the subsidiary findings, imports a finding of subsidiary facts essential to that conclusion. Lewis v. Conrad & Co. Inc. 311 Mass. 541 , 543.


FOOTNOTES

[Note 1] The companion case is by the same plaintiff against Isadore Phillips.