346 Mass. 333 | Mass. | 1963
This is a petition for leave to appeal late under G. L. c. 214, § 28 (as amended through St. 1960, c. 207, §2).
The facts are as follows: On May 29, 1962, orders for decrees were made in the cases of Albernaz v. Fall River, and a companion case, Bishop v. Fall River, post, 336, 342. These were petitions in equity brought under G. L. c. 31, § 47E, to enforce certain provisions of the civil service law. In both cases the trial judge ordered decrees to be entered in favor of the employee-petitioners. Counsel for the city and the employees then conferred during mid-July of 1962 to determine the form of the final decrees in the two proceedings. Both assented to the form of the decree in the Alternas case, and on July 25, 1962, a final decree was entered in that case and notice of the decree was sent to each. The decree in the Bishop case was entered on August 15,1962, following conferences by counsel in July and early August as to the form of the decree, and notice of its entry was sent to counsel. Counsel for the city planned to take an appeal in both cases. The attorney for the city does not deny receiving timely notice of the entry of the decree in the Alternas ease. In his supporting affidavit to the present petition he stated that this notice first came to his attention on August 23, 1962, when he “began to prepare both matters for appeal. ’ ’ On August 27 the petitioner filed a timely appeal in the Bishop case and on September 5 filed this petition for leave to appeal late in the Alternas case.
The single justice entered a decree allowing the petition, and the respondents appealed. The pertinent findings and rulings of the single justice were as follows: “I find that the notice of final decree dated July 25, 1962 was received in the office of the corporation counsel in due course, but through accident or mistake did not come to the attention of the corporation counsel or his assistant in charge of the case. The city intended to appeal and was preparing for the appeal of the subject case and a like case in which an appeal has been taken. Receipt of notice of the final decree in the other case led to the discovery of the entry of the
Leave to appeal late may be granted when a party omits to claim an appeal from a final decree within the required time “by mistake or accident or other sufficient cause.” G. L. c. 214, § 28. In his brief, counsel for the petitioner states that “no reason can be ascribed for failure to become cognizant of the postcard [giving notice of the entry of the final decree in the Albenaz case] but the fact remains that counsel for the city was not aware in time to seasonably file its appeal. ’ ’
In Trager, petitioner, 345 Mass. 650, 652, the single justice, whose decision was affirmed on appeal, ruled that at least since the amendment of G. L. c. 214, § 28, by St. 1960, c. 207, § 2, a justice of the Supreme Judicial Court has authority and discretion to permit a late appeal in circumstances where such action will tend to accomplish justice and prevent the loss of an appeal because of a mistake of counsel made in good faith. We think that this is a correct statement of the powers vested in a single justice in a case of this sort. And while we are not disposed to interpret this and the related statutes amended by St. 1960, c. 207, so as to encourage or condone “carelessness, ignorance, [or] laxity” on the part of counsel (see Alpert v. Mercury Publishing Co. 272 Mass. 43, 45), neither are we disposed to construe them so as to thwart their purpose: the relief from hardship in meritorious cases. This view, we think, is consonant with our decisions interpreting statutes of this type. See, for example, Jackson v. Goddard, 1 Mass. 230; Capen v. Skinner, 139 Mass. 190, 191-192; Nash v. Whitcomb, 225 Mass. 487, 490; O’Neill v. O’Neill,
We conclude that the single justice did not exercise his discretion improperly in finding “that the notice of final decree dated July 25, 1962, was received in the office of the corporation counsel in due course, but through accident or mistake did not come to the attention of the corporation counsel or his assistant in charge of the case.” Trager, petitioner, 345 Mass. 650, 652. The petitioner’s timely appeal in the Bishop case indicates that it intended to appeal and did not fail to file its appeal in the Alhemas case in order to gain an unfair advantage. The petitioner sought leave to appeal late promptly after its counsel discovered the error, and no evidence was presented to show that the respondents were prejudiced by change of position or otherwise by the allowance of the petition. Dondis v. Lash, 277 Mass. 477, 481-482.
. The single justice rightly ruled that the appeal would present a “meritorious case . . . worthy of presentation to a court.” General Motors Corp., petitioner, 344 Mass. 481. The correctness of this ruling will become apparent in the opinion on the merits in the companion case of Albernaz v. Fall River, post, 336.
Decree affirmed.