321 Mass. 487 | Mass. | 1947
This petition for a writ of mandamus comes before us upon the report of the judge of the Superior Court who ruled that he had no jurisdiction to order the correction by the respondent clerk of the Municipal Court of the Dorchester District of the record of that court, described hereinafter, and ordered that the petition be dismissed.
The judge found that the following facts were admitted by the respondent’s answer: “1. . . . The respondent, Anthony A. McNulty, is the clerk of the Municipal Court of the Dorchester District of the City of Boston in our County of Suffolk. 2. . . .On or about the 16th day of April, 1941, one Sarah M. Toy of Boston made application for supplementary proceedings against . . . [the] petitioner in said court under the provisions of c. 224 of the General Laws and acts amendatory thereof. 3. . . . Thereafter, on or about the 13th day of November, 1941, the said Sarah M. Toy filed charges of fraud under the provisions of § 19 of said act as to Morris Green setting
The report of the judge continues as follows: “I find that the petitioner, Morris Green, was foúnd not guilty on charges of fraud by Judge D. A. Rose on December 16, 1943. The finding was made shortly after 11:00 a.m. The creditor, Sarah M. Toy, thereupon appealed from the finding. The creditor and one surety then went into the clerk’s office and conferred with Frederick E. Simmons, assistant clerk of the court. The creditor was advised by the clerk that two sureties were needed to perfect a proper recognizance in connection with an appeal to the Superior Court. After consultation with Judge Rose, the matter, so far as entering into a recognizance was concerned, was continued until two o’clock. The court adjourned at twelve forty-five for the day. At two o’clock the creditor brought two sureties to the court house, Dora Tatelman and Anna Baker. The creditor remained outside, and the two sureties came before Jennie Thurlow, the second assistant clerk.
The exhibits referred to in the report were expressly incorporated therein by reference. An examination of them discloses that on April 1, 1946, the petitioner filed in the Municipal Court of the Dorchester District, hereinafter referred to as the District Court, the following “motion to amend record. And now come the judgment debtors, Morris Green and Sadie Green and in order that the record may conform to the true facts, move to amend the record and the extended memorandum on recognizance (1) By striking out the entry under date of December 16, 1943, ‘Creditor recognizes with Dora Tatelman and Anna Baker as sureties’; (2) By striking out the ‘extended memorandum on recognizance’ and inserting in place thereof the following: ‘December 16, 1943, 2 p.m. Dora Tatelman and Anna Baker presented themselves to the second assistant clerk of court, the court having adjourned and no justice being present, and neither creditor nor debtors being present, and offered themselves as sureties for Sarah M. Toy, judgment creditor, and thereupon were examined by the second assistant clerk with reference to their assets and liabilities and signed and swore to a statement thereof.’ ” This motion was heard on April 1, 1946, by the presiding judge of that court who reserved decision; on April 3, 1946, he denied that motion; and on April 12, 1946, the judge entered the following order on the same motion: “Motion denied because of length of time involved and independently of the facts.” The docket of that court concerning the proceedings there involved contains no entry following that of the denial on April 12, 1946, of the motion to amend. The record of a court imports verity. Bryer v. American Surety Co. 285 Mass. 336, 337, and cases cited. See also Haskell v. Cunningham, 221 Mass. 49, 53.
Order for judgment dismissing petition affirmed.