308 Mass. 202 | Mass. | 1941
This is another aspect of the case of Boston v. Santosuosso, 298 Mass. 175; 302 Mass. 169; 307 Mass. 302; ante, 189. After entry in the Superior Court of a final decree ordering each of the defendants, Santosuosso and Curley, to pay to the plaintiff a certain sum of money and costs, and providing, in the case of each defendant, that “the plaintiff have execution against the defendant” for this sum and interest thereon from the date of the decree and for costs, both defendants appealed to this court. This court issued a rescript affirming the decree with costs. A final decree after rescript was entered in the Superior Court on December 4, 1940, in the words of the final decree appealed from, except that the amounts stated therein apparently have been changed to bring up to the date of the decree after rescript the computation of interest and costs. Each defendant made a motion in the Superior Court that issuance of execution on this final decree after rescript be stayed until January 2, 1941, “in order that application may be made to the Supreme Judicial Court for leave to file a bill of review” in the Superior Court. Each motion was supported by an affidavit stating that
The plaintiff contends that the allowance of these motions was error. The contentions in behalf of one or both of the defendants are (a) that the allowance of his motion was not a proper subject of appeal, (b) that the allowance of the motion was not error, and (c) that the question whether such allowance was error has become moot.
The final decree after rescript provided for the unconditional payment of money by each defendant. Enforcement of such a decree is by execution or by proceedings for contempt. But see also G. L. (Ter. Ed.) c. 224, §§ 14-30. Rule 83 of the Superior Court (1932), however, recognizes that ordinarily enforcement of such a decree should be by execution, since it provides that upon such a decree “the clerk, upon request of a party entitled thereto, shall issue a writ of execution in common form thereon, unless the court shall otherwise order, and proceedings for contempt for non-payment shall not be begun upon such decree without leave of court.” By reason of this rule it is unnecessary to provide expressly in a decree for issue of execution since in the absence of a provision to the contrary such a provision is implied. Peerless Unit Ventilation Co. Inc. v. D’Amore Construction Co. 283 Mass. 121, 126. The final decree after rescript in the present case, however, provided expressly that the plaintiff should have execution against each defendant for the amount to be paid by him. This provision with respect to each defendant was no less a part of the decree than was the provision that such defendant should pay money to the plaintiff. This fact was recognized in Beacon Oil Co. v. Maniatis, 284 Mass. 574, 577, where it was said of a decree, that it was a final decree
The motions for stay of execution appear to have been allowed by the court after the entry of the final decree after rescript. Obviously the provisions for stay of execution so made were not incorporated in this decree. Whether, if they had been so incorporated, this decree would have failed to conform to the rescript need not be decided. If they had been so incorporated this question might have been raised by appeal from the final decree after rescript. Carilli v. Hersey, 303 Mass. 82.
The plaintiff was entitled under the decree after rescript — except as it was affected by the allowance of the motions in' question — to have the clerk of the court in which this decree was entered issue, upon request of the plaintiff, writs of execution in common form against the defendants, subject to the provisions of the statutes relating to such writs. See Rule 83 of the Superior Court (1932); G. L. (Ter. Ed.) c. 214, §§ 29, 41; c. 235, §§ 16, 17. Issuance of such a writ
The defendants, however, did not seek by their motions the exercise of the power of the Superior Court, above described, to make its records and processes conform to the truth. No execution appears to have been issued. Nor is there any contention that the final decree after rescript did not warrant the issuance of executions against the defendants. The defendants, on the contrary, sought by these motions an extension of the time beyond that prescribed by statute within which execution should not be issued. In support of the motions, reliance is placed upon decisions of this court with respect to the power of the Superior Court to take further proceedings in a case after rescript from this court and before entry of a final decree in the Superior Court upon such rescript. See Day v. Mills, 213 Mass. 585, 587-588; Long v. George, 296 Mass. 574, 577; Carilli v. Hersey, 303 Mass. 82, 87. But these decisions are inapplicable to the present case. If any such power to take further proceedings before entry of the final decree after rescript was exercised ■— as does not appear — the result of such exercise was embodied in the final decree after rescript and no question as to the propriety of such exercise is raised on this appeal. And the motions in question —■ as appears from the record and as the parties concede — were allowed after the entry of this final decree. But it is an "established principle that after the entry of a final decree in equity . . . the case is finally disposed of by t00he court, subject to such rights of appeal, if any, as the statute gives, and [that] the court has no further power to deal with the case except upon a bill of review.” Commissioner of Insurance v. Broad Street Mutual Casualty Ins. Co. 306 Mass. 362, 365, and cases cited. There are, however, recognized exceptions to this principle. But this case does not come within any of them. The purported change with respect to the time within which execution should not be issued obviously was not the correction of a clerical error in the final decree after rescript by reason of which this decree did not con
The allowance of the motions in question must be supported, if at all, on the ground that it did not change the final decree after rescript, but was merely an exercise of the power of the court over its own processes. It has been recognized by decisions of this court already cited that a court has considerable power over its own processes, including its executions, that may be exercised upon motion. But the power there recognized is a power to make an execution conform to the judgment or decree upon which it is based, and to set aside an execution that is not warranted by such judgment or decree. It is not, so far as these decisions go, a power to stay an execution to which the plaintiff is lawfully entitled under the decree. No statute expressly authorizes the Superior Court in the circumstances of the present case to grant such a stay. If the Superior Court has such authority it is by reason of implied or inherent power. This case does not require a consideration at large of the question of the existence of such an implied or inherent power to stay execution in circumstances
The question of the existence of implied or inherent power in the Superior Court upon motion to stay execution for this purpose must be determined in accordance with' the law governing bills of review and the statutes relating to review of decisions of the Superior Court. G. L. (Ter. Ed.) c. 214, § 29, regulating the issuing of executions upon final decrees in equity provides that “No process for the execution of a final decree . . . shall issue until the expiration of twenty days after the entry thereof.” There are, however, two express exceptions to this limitation of time permitting issuance of an execution sooner, that is, (a) where there is a waiver of appeal by all parties “by a writing filed with the clerk or by causing an entry thereof to be made on the docket,” (see Tolman v. Tolman, 224 Mass. 5Q1, 504), and (b) where “the justice by whose order the final decree was made is of opinion that the appeal from such decree is groundless and intended merely for delay, process for the execution of the decree may be awarded notwithstanding the appeal.” The statutory provision for postponement of execution for a period of twenty days obviously was for the purpose of giving the defeated party an opportunity to appeal from the decree without being subject to execution. The Superior Court has no power to extend the time for claiming an appeal. That power, in substance, is conferred upon this court. G. L. (Ter. Ed.) c. 214, § 28. The power granted by G. L. (Ter. Ed.) c. 231, § 135, to the Superior Court to extend the time in which certain acts in the completion of an appeal shall be done (previously exercised in this case, 302 Mass. 169), does not extend to the act of claiming an appeal. See G. L.
The statutory system relating to review in actions at law is somewhat similar. A defeated defendant is not subject to execution until final judgment has been entered. Review is ordinarily had by appeal or exception before the entry of such a judgment, upon which, alone, execution may be issued. But by express statutory provisions, similar to the provision in equity, if the appeal or exceptions are groundless judgment may be entered, notwithstanding the appeal or the exceptions, and execution awarded or stayed, upon terms. G. L. (Ter. Ed.) c. 231, §§ 96, 116. In such a case, if execution is awarded and is collected and
A bill of review to review a final decree in equity resembles, in some aspects, an appeal from such a decree, and, in some aspects, a writ of error to review a final judgment at law. See Nelson v. Bailey, 303 Mass. 522, 524-525. But a bill of review ón the ground of newly discovered evidence or other matter not apparent on the record, the; only kind of bill of review that will lie to review a decree after rescript (Manning v. Woodlawn Cemetery Corp. 249 Mass. 281, 288), more closely resembles a statutory writ of review to review a judgment at law. The analogy of a bill of review to a writ of review was recognized and followed in Evans v. Bacon, 99 Mass. 213, 215. See also Plymouth v. Russell Mills, 7 Allen, 438, 445; Conant v. Perkins, 107 Mass. 79, 82; Mac
The appeal is properly before this court as an appeal from a final decree. The indorsements on the motions, though informal, were adequate to constitute decrees. Wallin v. Smolensky, 303 Mass. 39, 42. And such decrees in their nature were “sufficiently final ... to warrant present con
It follows that the decrees allowing the motions must be reversed, and the motions denied.
Ordered accordingly.