297 Mass. 17 | Mass. | 1937
The plaintiff by this suit in equity seeks to have set aside a declaration of trust, a mortgage, and a note signed by her upon the ground that they were signed by her under duress and against her will and without fair and adequate information. The case was heard by a judge of the Superior Court after the appointment under G. L. (Ter. Ed.) c. 214, § 24, of a person to take the evidence. The trial judge filed findings, rulings, and an order for a de
It is provided by G. L. (Ter. Ed.) c. 231, § 135, that, “In order to carry any question of law . . . from any other court to the full court of the supreme judicial court upon
Where an appealing party is willing to take an equity appeal to the full court without a transcript of the evidence, and the prevailing party would not be prejudiced, that course may be followed provided there has been due expedition to that end. Wyness v. Crowley, 292 Mass. 459. The question is whether the plaintiff has adopted correct procedure to avail herself of this course. She seasonably claimed her appeal from the final decree. Then an interval of more than six months elapsed before she filed the tran
Those delays of the plaintiff, her belated attempt to waive printing the evidence, and her endeavor to rely solely on the original appeal without the evidence, are of some significance as bearing upon the bona fide nature of the appeal.
It is doubtful whether her later appeal is properly before this court under St. 1933, c. 300, § 2. If, however, the proceeding be considered on the footing that there has been an intent to comply with that statute, there is no reversible error. Stanwood v. Adams Garage Inc. 281 Mass. 452.
To support the contention of the plaintiff would tend to promote confusion and uncertainty of practice. The motions to dismiss the appeal were granted. That imports a finding of all subsidiary facts necessary to justify the conclusion reached. Manzi v. Carlson, 278 Mass. 267, 273. No reason appears for disturbing the disposition of the motions in the Superior Court.
If, however, the original appeal be considered, the plaintiff shows no reversible error. Since there is no report of the evidence, the findings of fact by the trial judge must be accepted as true. They are not inconsistent with each other. The entry of the final decree dismissing the bill implies the drawing of all rational inferences against the plaintiff so far as necessary to that result. It ought not to be changed. Peabody v. Dymsza, 280 Mass. 341. Seager v. Dauphinee, 284 Mass. 96, 98. Karas v. Karas, 288 Mass. 460, 462.
Decree dismissing appeal affirmed with costs.