5 Mass. App. Ct. 608 | Mass. App. Ct. | 1977
This action brought in the Superior Court under G. L. c. 231A seeks a declaratory judgment that a sheriff’s sale of real estate to the defendant was invalid. The plaintiff appeals from a judgment dismissing the action.
The facts as disclosed by the record appendix may be summarized as follows: The defendant in the present case, McAbee, obtained a default judgment for damages against the plaintiff here, Healy, in the First District Court of Barnstable. Execution issued thereon. Healy then brought a petition to vacate that judgment on which there issued an order of notice and a supersedeas staying execution of the earlier judgment. McAbee’s motion for removal of the stay was denied. The petition was heard by a judge of a different District Court, sitting by assignment. On April 30, 1975, that judge made an order entitled “Finding or Decision” dismissing Healy’s petition. The order was not filed in the clerk’s office until May 2, and at some point (to be discussed in this opinion) the case went to judgment. On May 6 the sheriff, presumably in reliance upon the order of April 30, conducted a sale of the property and delivered a deed to McAbee. On May 13 Healy appealed to the Superior Court from the District Court judgment.
We note at the outset that this action, being one for declaratory relief, should have been declared upon rather than dismissed. Attorney Gen. v. Kenco Optics, Inc. 369 Mass. 412, 418 (1976).
The central issue is whether the petition to vacate had gone to judgment at the time of the sheriff’s sale on May 6. If it had, the stay of execution on the previous judgment was automatically revoked and the sale was valid. If not, the stay remained in effect and the sale was premature.
On their face the quoted provisions of c. 235, § 2, and Rule 36 seem straightforward. But when applied to the facts of this case an ambiguity emerges. In the first place May 2, the day on which the “Finding or Decision” on the petition to vacate was filed in the clerk’s office, fell on a Friday. The provision of Rule 36 which prevented a case
McAbee contends that the petition to vacate was ripe for judgment on Friday, May 2, and therefore went to judgment on that date. While that contention is plausible, it appears to overlook two important facts. The first of these is the two-day interval between the issuance of the “Finding or Decision” on April 30 and its receipt by the clerk on May 2. If McAbee’s contention is based on the theory that the case became ripe for judgment on the earlier date, it fails, for as we view it, Rule 36 required that the judge’s finding and order be entered in the clerk’s office before the case could be said to be ripe for judgment. See Hacking v. Coordinator of the Emergency Relief Dept. of New Bedford, 313 Mass. 413, 416-417 (1943), and cases cited. Compare Sullivan v. Jordan, 310 Mass. 12, 16-17 (1941). If, however, McAbee’s argument is that the case became ripe for judgment when the order was received by the clerk on May 2, it fails to take into account the fact that the record does not reveal the time on that date at which the order was received. General Laws c. 235, § 2, as then in effect, directed that judgment be entered in District Courts not simply on Friday but at 10:00 a.m. on that day. It is clear that § 2 barred a case which had become ripe for judgment after 10:00 A.M. on a Friday from going to judgment on that day. But we reach the further conclusion that the petition to vacate could not have gone to judgment on Friday, May 2, even if the order for judgment had been received by the clerk before 10:00 a.m. on that day.
In reaching this conclusion we have in mind the ruling of the Supreme Judicial Court in Home Fin. Trust v. Rantoul Garage Co. 300 Mass. 86 (1938), upon which Healy relies, and the distinction between that case and the instant case drawn by McAbee. In Home Fin. Trust a District Court judge filed rulings and findings for the plaintiff
We think that the Legislature’s choice of 10:00 A.M. as the hour at which District Court cases automatically went to judgment had practical significance. That hour fell shortly after the courts opened for business (see Rules 70 and 72 of the Rules of the District Courts [1965]). Its selection was some indication that the automatic entry of judgments was among the first orders of business on each Friday. But if it were to be held that orders for judgment received by the clerk prior to 10:00 a.m. automatically went to judgment at that time, while those, for example, received at 10:01 A.M. must be held in abeyance until the succeeding Friday, a party seeking to ascertain or establish the date for judgment would have been confronted with a difficult burden of inquiry and proof. We do not believe that the Legislature intended to impose that sort of burden upon litigants.
The judgment of the Superior Court is reversed and the case is remanded to the Superior Court for the entry of a new judgment in accordance with this opinion.
So ordered.
We are not convinced by the several reasons advanced in McAbee’s brief for his contention that he was entitled to prevail regardless of when judgment on the petition to vacate entered. Two of those reasons — that the supersedeas was improperly issued because of Healy’s apparent failure to file a bond pursuant to G. L. c. 250, § 17 (as amended by St. 1971, c. 347, § 2), and the absence of prior notice pursuant to Rule 43 of the Rules of the District Courts (1965) —must fail. The appropriate time for McAbee to have challenged the super
McAbee also contends that the “Finding or Decision” itself had the effect of revoking the supersedeas regardless of when judgment was entered pursuant to that order. But there is nothing in its terms which can properly be construed as having that effect. McAbee cites no authority, and we have found none, to support the proposition that such an order in these circumstances would have such an effect per se.
Finally, McAbee maintains that the case has become moot (a) because Healy’s appeal from the judgment on the petition to vacate was not filed within the six-day period prescribed by G. L. c. 231, § 97, and (b) because Healy subsequently satisfied the original judgment and redeemed the property. The first of the asserted grounds adds nothing as it begs the question when the case did in fact go to judgment, and the second is based on allegations of fact outside the record.
We note that on a subsequent occasion the Supreme Judicial Court has interpreted the Home Fin. Trust case as declaring that the case went to judgment on May 8. See Hacking v. Coordinator of the Emergency Relief Dept. of New Bedford, 313 Mass. 413, 419 (1943).