220 Mass. 356 | Mass. | 1915
The plaintiff’s exceptions raise a point of practice as to the allowance of the defendant’s exceptions filed on April 24,1913. The time for the allowance of these exceptions, by order of court entered within three months thereafter, was extended, St. 1911, c. 212, § 2, to October 1, 1913. Two days, before the expiration of this extension there was a hearing on the allowance of the exceptions, and leave was given orally to present an amended bill of exceptions on or before October 6, 1913, but no such bill was filed within this time.
On October 6,1913, the clerk, without special order of the court, entered judgment for the plaintiff. He evidently acted on the theory that the case came within Rule 64 of the Superior Court, which provides that where “bills of exceptions have been filed and remained without action for three months, the clerk shall forthwith notify the parties interested that unless within thirty days thereafter the bill of exceptions is presented to the presiding justice for allowance, it will be dismissed and judgment entered as though no exceptions had been filed.” That rule was not applicable to these facts. The bill of exceptions had been presented to the judge and a hearing had within the time allowed by the order of extension. It appears to have been under consideration by him. No preliminary warning notice had been sent by the clerk.
Upon a motion filed on November 1, 1913, the court having found among other facts that the “entry of judgment and issuance of execution are erroneous and made by mistake” and that the record ought to be amended in order to conform to the truth, entered an order that all matters relating to the entry of judgment and issuance of execution be stricken from the record.
There is no error of law in this procedure. The matters stricken from the record were entered by the clerk without the direction of the court and were not as matter of law appropriate entries to be made in course under the circumstances. The rule means that exceptions ordinarily shall not be dismissed until after the warning notice from the clerk to the effect that they will be
The court has ample power to correct mistakes like this found in its records. Karrick v. Wetmore, 210 Mass. 578. See also Drinkwater v. Frank, 213 Mass. 194; Hathaway v. Congregation Ohab Shalom, 216 Mass. 539, 542. The defendant’s exceptions rightly were allowed, and the plaintiff’s exceptions must be overruled.
The defendant’s exceptions relate to an action upon a note to the order of the plaintiff’s intestate, purporting to be executed by the deacons, treasurer and clerk of the defendant. . It seeks to escape liability because the note is signed by five deacons only, and not by the full board of seven. The by-laws of the defendant confer upon its board of deacons extensive powers as to its business affairs. The vote of the defendant authorized a note to be signed by its board of deacons. Under all the circumstances, a signing by a majority of the board was enough in this respect to bind the defendant. McNeil v. Boston Chamber of Commerce, 154 Mass. 277, 281. Young v. Canada, Atlantic & Plant Steamship Co. Ltd. 211 Mass. 453, 457.
Three other persons called subdeacons signed the note. But their signatures did not diminish the binding force of execution by a majority of the deacons.
The vote of the church did not specify the date for the note. But there was evidence that its amount in fact was ascertained from two previous notes whose amount on May 1, 1907, the date inserted in the new note, was the sum appearing on the face of the new note. The facts respecting the old notes as a basis for the new one were brought fully to the attention of the meeting at which the vote was passed. Payments were made on account of the new note. There was ample evidence that its date was within the scope of the vote.
Plaintiff’s exceptions overruled.
Defendant’s exceptions overruled.