This is a suit in equity. A final decree dismissing the bill was entered in the Superior Court on March 17, 1915. The plaintiff appealed to the full bench of this court on March 29, 1915, being within the twenty days now allowed by law. Twenty-three days later, on April 21, 1915, a motion by the defendant that this appeal be dismissed because not seasonably entered was granted.
The word “forthwith” first appeared in the law relating to the entry of appeals in equity in R. L. c. 159, § 19. It was not in
It was said in Priest v. Groton, 103 Mass. 530, in effect, that it was common practice for the name of a case in which exceptions or appeal was pending to be transmitted to the clerk of the full court and the entry fee to be paid later, and the copies and other papers entered at a subsequent time. That practice was changed many years ago. Now and for years last past it has been the practice not to enter a case on the calendar of the full court sitting for the Commonwealth until the entry fee has been paid, the papers printed and the copies made in cases where copies must be transmitted, so that all essential papers may be filed at one time. It also was pointed out in that opinion that the requirement that the entry be made “as soon as may be” after the case was ripe for entry, being the equivalent of a reasonable time, was substituted by St. 1864, c. Ill, for the earlier definite period of twenty days found in Gen. Sts. c. 115, § 12. In Bentley v. Ward, 116 Mass. 333, it was held that, in any case where no special circumstances are shown, exceptions not entered in this court within a month after the final adjournment of the term at which they were allowed could not be deemed to be entered “as soon as may be.”
The appeal in equity may be taken at any time within the twenty days allowed by law even up to the last hour of that period. That is the first step. After that step has been taken, then the next one, viz. — to procure the printing of the record and the making of the necessary copies, — must be taken “forthwith” in the words of the statute. The word “forthwith” in this context means that directions must be given with reasonable dispatch to the clerk to prepare that which the law requires to be prepared as a prerequisite for entering the case in this court, and the necessary money must be deposited with him to reimburse him for the expenses. When these papers are prepared, then, at once, they must be filed in the full court and the entry fee paid. The duty of preparing the necessary papers and the making of the required copies is vested in the clerk. R L. c. 157, § 21; c. 173, § 117. St. 1908, c. 177. Of course, the party cannot control the speed of action of the clerk. That rests upon his official responsibility to act with reasonable promptness. But in order to comply with the requirement of the statute as expressed in the word “forthwith” in St. 1911, c. 284, or the words “ as soon as may be ” in R L. c. 173, § 117, the party must, as soon as reasonably may be after the appeal is taken or the exceptions allowed, give directions to the clerk to pre
It must be assumed upon the present record that the judge found as a fact that failure by the plaintiff for twenty-three days to enter his appeal in this court was not acting with reasonable promptness. As the evidence is not reported, his finding cannot be pronounced wrong. Such a finding well might be based on the subsidiary facts, if they were found as facts, that no direction had been given to the clerk, together with an adequate payment to cover the expenses, to prepare, print and copy the papers required by law for entry of the cause in this court within- that period of twenty-three days, and that no excuse existed for such delay.
It may not be amiss to add that a careful examination of this record discloses no error of law in the disposition of the case on its merits.
Order dismissing appeal affirmed.
By Quinn, J.