266 Mass. 315 | Mass. | 1929
This suit, brought to settle complicated accounts between the plaintiff and defendant, was begun by trustee writ in common form. G. L. c. 214, § 7. William H. Northridge as executor was named as trustee and due service was made upon him. According to the record before us, the trustee does not seem to have appeared at the return day, nor to have filed an answer. The case was referred to a master. After the filing of his report, on June 26, 1926, orders for decrees were made in these words: “This suit was heard on the master’s report. Let an interlocutory decree be prepared confirming the master’s report; an interlocutory decree charging the trustee; and a final decree ordering the defendant to pay to the plaintiff $2,121.77 together with costs taxed in the sum of $25.45 and execution to issue for said sums against the defendant and the trustee.” On the same date decrees were entered in accordance with the orders. One confirmed the master’s report. The one charging the trustee, entitled “Interlocutory Decree,” was in these words: “This case came on to be heard at this sitting and it appearing that the trustee has failed to appear and answer, it is ordered, adjudged and decreed that said trustee be, and hereby is charged in the sum of $2,121.77 together with costs taxed in the sum of $25.45.” By the final decree the defendant was ordered to pay the plaintiff the sums specified in the orders. That decree concluded in these words: “that execution issue for said sums against the defendant and the trustee.” The plaintiff appealed from the final decree. The decision on that appeal is reported in 258 Mass. 118. Final decree after rescript in accordance with that decision, whereby the amounts to be paid by the defendant to the plaintiff were changed, but otherwise in the same words as the earlier final decree, was filed on January 18, 1927, to be entered as of November 22, 1926. The trustee named in the writ on June 16, 1927, filed
The trustee raises the point that the case is not rightly before us on appeal from an interlocutory decree. Hutchins v. Nickerson, 212 Mass. 118, 120. Siciliano v. Barbuto, 265 Mass. 390, 393. The decree of June 26, 1926, charging the trustee for specific amounts, was in form final. The alleged correction made by the decree here under review affected the rights of the plaintiff. If it stands, the trustee could not be charged except upon scire facias. MacAusland v. Fuller, 229 Mass. 316. While the proceeding by trustee process and the scire facias to determine the amount due “are part of one continued and connected course of proceedings,” Universal Optical Corp. v. Globe Optical Co. 228 Mass. 84, 85, yet we think that the decree appealed from in the circumstances here disclosed was sufficiently final, so far as the trustee was a party to the equity suit, to warrant present consideration of it. Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 253, 254. Hanson v. Hanson, 258 Mass. 45, 47. The rights of the plaintiff against the trustee in trustee process, and his rights against the main defendant, are so far distinct and severable that a decision respecting each may be treated as final for the purpose of bringing proceedings to this court without violation of the rule of Hutchins v. Nickerson, supra. Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 253, 254; S. C. 224 Mass. 379.
The question presented by the appeal is not whether the Superior Court has power to correct clerical errors in its records and decrees. Of that there can be no doubt. Karrick v. Wetmore, 210 Mass. 578, 579, and cases there collected. Randall v. Peerless Motor Car Co. 212 Mass. 352, 387. Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460, 462. The question presented is whether on this record the decree here under review rightly could have been entered. There is nothing inherently wrong or contrary to law in specifying in the original proceeding and without resort to scire facias the amount for which a trustee shall be charged. Jarvis v. Mitchell, 99 Mass. 530. Cheshire National Bank v. Jaynes, 225 Mass. 432, 435. .
If that action by the second judge be treated as a finding of fact, it is entitled to the same weight as any finding of fact made by a tribunal having jurisdiction of the cause and the parties. Until reversed or set aside in some recognized form of procedure, it must be accepted as true. It is conclusive upon the rights of the parties. If it be treated as a ruling of law, there was no exception or appeal taken to the end that it might be reversed. It must stand as the law of the case. Boyd v. Taylor, 207 Mass. 335. Beach & Clarridge Co. v. American Steam Gauge & Value Manuf. Co. 208 Mass. 121, 132. Murphy v. Hanright, 238 Mass. 200, 203, 204. United Drug Co. v. Cordley & Hayes, 239 Mass. 334, 337. Daniels v. Cohen, 249 Mass. 362, 364. Phillips v. Director General of Railroads, 251 Mass. 263, 268. Pizer v. Hunt, 253 Mass. 321,333. If it be treated as the decision of a mixed question of law and fact, the same principles apply.
Other points argued need not be considered.
Decree reversed.