Home COMMONWEALTH vs. WILLIAM M. GILDAY, JR.

357 Mass. 775

May 5, 1970

The defendant, while represented by counsel, was convicted by a jury on three indictments, respectively, for carrying a revolver in a motor vehicle without a permit, G. L. c. 269, Section 10; possessing narcotic drugs, G. L. c. 94, Section 205; and possessing harmful drugs, G. L. c. 94, Section 187B. On the same day he was sentenced to three concurrent one year sentences. The time for filing a bill of exceptions or taking an appeal having expired, the trial judge denied his motion for a free copy of the transcript. The defendant, who apparently is without counsel, is now pressing his exception to this denial. He alleges his own indigence, and relies upon such cases as Griffin v. Illinois, 351 U.S. 12, Long v. District Court, 385 U.S. 192, and Gardner v. California, 393 U.S. 367. He now is endeavoring to proceed upon writ of error. G. L. c. 250, Sections 1,2, 9-13. This is a restricted remedy, and is limited to a review of matters of law apparent on the record of the court in which the judgment was entered. Evidence heard at the trial on the merits is no part of the record and cannot be considered on writ of error. Guerin v. Commonwealth, 337 Mass. 264 , 268. The defendant argues that he is in the process of filing a petition for writ of error and assignment of errors and needs the transcript to accomplish the filing of these papers. He has not made any showing of a reasonable need for a transcript for this particular form of review. Guerin v. Commonwealth, supra, at pp. 269-270. The present record discloses no circumstances such as those considered in Sandrelli v. Commonwealth, 342 Mass. 129 , 141-143. See Shoppers' World, Inc. v. Assessors of Framingham, 348 Mass. 366 , 376. The record contains a list of fourteen alleged errors, broadly stated, none of which shows such a need, or seemingly could help on writ of error, regardless of the defendant's indigence.

Exceptions overruled.

Home AMERICAN DISCOUNT CORPORATION vs. WILLIAM J. LEVENTHAL.

357 Mass. 775

May 5, 1970

Following the filing of a bill in equity on March 11, 1965, by the plaintiff, alleging various acts of malfeasance by the defendant as a director of the plaintiff resulting in financial losses to the plaintiff, both the defendant and his counsel in writing assented to a "final decree assessing damages" in the sum of $750,000. The decree was entered on September 13, 1965. On January 2, 1969, the defendant filed a motion to set aside the final decree on the ground that it had been "obtained by fraud and deceit." The motion, after hearing, was denied on January 31, 1969. No appeal was taken or exception saved. On May 5, 1969, a motion of similar purport accompanied by two affidavits was filed, and after hearing by the same judge, was denied on May 16,

Page 776

1969. The defendant appealed and also filed a bill of exceptions. Contrary to the plaintiff's contention, the remedial course pursued by the defendant, a motion to vacate, was, in the circumstances, proper. See Murphy v. Furcolo, 350 Mass. 772 , and cases cited. The judge's action on the first motion, unchallenged by the defendant, was decisive of the issue raised, whether it be treated as one of fact or law or both. Barringer v. Northridge, 266 Mass. 315 , 319-320. If the hearing by the same judge on the second motion (which was of the same tenor as the first, plus affidavits) be treated as an implied revocation of his first order, there was no error in the denial of the second motion to vacate. The judge was not required to believe the affidavits. Germain v. Raad, 297 Mass. 73 , 75. Kahn v. Pacific Mills, 311 Mass. 588 , 590. The denial of the motion imports finding of facts to support that action. Carilli v. Hersey, 300 Mass. 329 , 331. There is no reason to doubt that the action was taken on the merits. Barringer v. Northridge, 266 Mass. 315 , 319.

Exceptions overruled.

Order denying motion to vacate final decree affirmed.