168 Mass. 304 | Mass. | 1897
In this action at law brought in the Superior Court for the county of Bristol, and tried by the court without
The statutory provisions which concern the establishing of the truth of exceptions which have been disallowed are found in Pub. Sts. c. 153, § 13, and the rule made by this court pursuant to said section is Common Law Rule XXX., 136 Mass. 598. The rule requires a party to file his petition within twenty days after notice of the refusal of the justice to sign and allow the bill of exceptions “ in the court in which the exceptions would by law have been entered, if duly signed and allowed,” etc. January 12,1897, was the nineteenth day after notice of such refusal, and January 14 was the twenty-first day after such notice.
The contention of the plaintiff is, that this petition is within St. 1891, c. 87, § 13 that an entry fee of three dollars was payable, and that the provision that “ no suit, action, libel for divorce, or petition shall be entered or filed by the clerk until said fee is paid,” is a condition precedent to the right to file such a petition, and that there could be no legal filing until such entry fee had been paid. The contention of the defendant is, that this statute does not relate to petitions filed in the full court of the Supreme Judicial Court, or that, if it does, the provision we have cited is only directory to the clerks, and was not intended to affect the rights of parties when a petition had been actually filed, particularly when an entry fee was not paid because it was not demanded, and it did not occur to any one present at the time of filing that an entry fee was payable.
It is not entirely clear that petitions to the full court were intended to be included in the statute. Certainly nearly all the proceedings mentioned in the statute are proceedings over which the full court has no original jurisdiction. In the present case, however, as the original action was in the Superior Court, this petition was the first proceeding of any kind relating to it which was within the jurisdiction of the Supreme Judicial Court, and following the analogy of the decision in Burlingame v. Bartlett, 161 Mass. 593, we are inclined to hold that on the filing of the petition in the Supreme Judicial Court for the county of Bristol the sum of three dollars was payable under St. 1891, c. 87, § 1.
St. 1888, c. 257, established annual salaries for the clerks of .courts for the counties named in the statute, and provided that the clerks of the courts in the several counties should account to the treasurer of the county for all fees and moneys of whatever description or character received by them or by any assistant or other person in their offices and employment for any acts done or services rendered in connection with their offices ; and by the eighth section it was provided that “ the clerks of the courts shall collect all fees in advance.” This statute provided that the annual salaries established for the clerks of the courts in the counties mentioned should be in full compensation for all official services. See Pub. Sts. c. 159, §§ 28-30. St. 1887, c. 112, had made provision for an annual salary of the clerk of the courts for the county of Dukes County, and this statute with the St. 1888, c. 257, established annual salaries for the clerks of courts in all the counties of the Commonwealth.
The provision in St. 1888, c. 257, § 8, that “ the clerks of the courts shall collect all fees in advance,” probably was inserted for the purpose of holding them accountable for all fees which were by law payable, whether they actually collected them or not; and it also served as a protection to the clerks against the importunity of lawyers or parties who desired that credit might be given them for the payment of fees. But the provision, we think, could not properly be construed as a condition precedent to the rights of parties under processes which in fact had been duly entered in the courts without the payment of the proper fees in advance. It would require very explicit provisions of statute to induce us to hold that a party must determine, at the peril of losing all benefit from the entry of any writ, petition, or other process, when an entry fee is payable and how much is payable, and must make the payment in advance, although an entry fee is not demanded by the clerk, and the writ, petition, or other process has been actually entered in court. The provision in St. 1891, c. 87, § 1, that “ no suit, action, libel for divorce, or petition shall be entered or filed by the clerk until said fee is paid,” undoubtedly is in form more nearly mandatory than the provision
So ordered.