GEO. T. MCLAUTHLIN CO. vs. MAY P. FERREIRA & others.
G. L. (Ter. Ed.) c. 231, Section 111, does not apply to suits in equity. [143] Where an answer to a question reported by a judge of the Superior Court in a suit in equity, whether certain communications sent in an action at law in the Superior Court to the clerk thereof were "requests in writing" as to the entry of judgment within G. L. c. 235, Section 1, and Rule 79 of the Superior Court (1954), would not determine whether the execution in the action should be reformed as sought by the bill in the equity suit, it was ordered pursuant to G. L. c. 211, Section 4A, that the cause be transferred to the Supreme Judicial Court, and the report was dismissed. [143-144]
BILL IN EQUITY filed in the Superior Court on August 14, 1963.
The suit was reported by Dewing, J.
Stuart DeBard for the plaintiff.
No argument or brief for the defendants.
WILKINS, C.J. This is a report without decision, purportedly pursuant to G. L. (Ter. Ed.) c. 231, Section 111, of a bill in equity which was heard by a judge of the Superior Court upon a case stated. Section 111, however, does not apply to suits in equity. G. L. (Ter. Ed.) c. 231, Sections 144, 146. The applicable statute is G. L. (Ter. Ed.) c. 214, Section 31, which reads, "A justice . . . 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."
This bill in equity arises out of an effort to reform the execution in a law action numbered 12,293 on the docket of
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the Superior Court, Bristol County, brought by Geo. T. McLauthlin Co. (the plaintiff here) against Roger Ferreira (now deceased) and his wife May P. Ferreira (a defendant here). The only question reported is whether in case numbered 12,293 two communications sent to the clerk by the plaintiff were "requests in writing" as to the entry of judgment within G. L. (Ter. Ed.) c. 235, Section 1, and Rule 79 of the Superior Court (1954). The answer to this question would not enable us to decide whether there could be an amendment after judgment. See G. L. (Ter. Ed.) c. 231, Section 56, upon which the plaintiff relies. Nor do we know whether facts might be found showing a mutual mistake which would permit a reformation of the agreement for judgment to delay the judgment instead of the execution. See Mates v. Penn Mut. Life Ins. Co. 316 Mass. 303, 306; Century Plastic Corp. v. Tupper Corp. 333 Mass. 531, 535; DeVincent Ford Sales, Inc. v. First Mass. Corp. 336 Mass. 448, 452. Compare Eno v. Prime Mfg. Co. 317 Mass. 646.
In order to prevent further delay in disposition of the cause, an order will be made pursuant to G. L. c. 211, Section 4A, inserted by St. 1962, c. 722, Section 2, transferring the cause to the Supreme Judicial Court. Needham Housing Authy. v. Vogel, 332 Mass. 641, 642.
Report dismissed.