284 Mass. 503 | Mass. | 1933
This is an appeal from orders of an appellate division denying a petition to establish a report and dismissing a report.
Thomas Kelly, trustee, brought an action by trustee process in the Municipal Court of the City of Boston against Helen V. Foley on a promissory note and summoned The Atlantic National Bank of Boston, The First National Bank of Boston and The National Shawmut Bank of Boston as trustees. The First National Bank of Boston answered funds in the names of Helen V. Foley, Helen V. Foley, agent, and Helen V. Foley, trustee. On September 27, 1932, a petition was filed by Nora and Katheryn C. Donoghue claiming the funds standing in the name of Helen V. Foley, trustee, alleging ownership of such funds, praying that the attachment be discharged as to such funds and that the claim be sustained. On the same day Sewall W. Abbott and others, trustees under the will of John Brewster, filed their petition alleging ownership of the funds in The First National Bank of Boston standing in the name of Helen V. Foley, agent, and praying that the attachment as to these funds be discharged and their claim be sustained. The defendant was defaulted on October 3, 1932, when the action appeared on the trial fist. Defendant’s motion to discharge the trustee was denied. The claimants’ petitions were heard by a judge of the court on November 16 and 17, 1932. The judge reserved his decision. On November-18, 1932, at 9:50 a.m. the plaintiff discharged the trustees, and at ten o’clock judgment was entered for the
The essential question for decision is whether the judgment entered put an end to authority of the court to act further, in the case. A preliminary question, however, is presented — whether the Appellate Division had jurisdiction to deal with the plaintiff’s petition for establishment of the draft report rejected unless as amended by the trial judge, and for any report. The question of jurisdiction may be raised by the court itself, and here the Appellate
The judgment, however, is not valid. The statute G. L. (Ter. Ed.) c. 235, § 2, and Rule 34 of the Municipal Court of the City of Boston (1932) provide that judgment in civil actions and proceedings ripe for judgment shall be entered by the clerk, unless the party entitled thereto otherwise requests in writing and the court otherwise orders, at c ten o’clock in the forenoon of Friday of each week; or at any time on notice and motion in a case ripe for judgment. As stated in the case of the Lynn Gas & Electric Co. v. Creditors National Clearing House, Inc., just cited (237 Mass. 505, 507), it is not easy to give a definition universally applicable to “ripe for judgment.” One sufficiently broad is there quoted from American Wood Working Machinery Co. v. Furbush, 193 Mass. 455, 457: “when, under the last entry, the case seems to have been brought to a final determination, and everything seems to have been done that ought to be done before the entry of a final adjudication upon the rights of the parties.” Within that definition the case before us was not ripe for judgment. See Norcross v. Crabtree, 161 Mass. 55. In Bennett v. Powell, ante, 246, 248, more than a year had elapsed after entry
An adverse claimant’s right in the trustee process is wholly the creation of statute. He is made a party to the proceeding. Boylen v. Young, 6 Allen, 582. Fuller v. Storer, 111 Mass. 281. Gifford v. Rockett, 119 Mass. 71. Hubbard v. Lamburn, 189 Mass. 296. Zani v. Phandor Co. 281 Mass. 139, 146, 149. He has no right to a judgment in his favor against the trustee, the defendant, or another claimant, or, except for costs, against the plaintiff. Gifford v. Rockett, 119 Mass. 71. Fuller v. Storer, 111 Mass. 281. See Peck Brothers & Co. v. Stratton, 118 Mass. 406. Yet he has a right to an adjudication of the matter of his claim, an adjudication which will become res judicata binding the other parties to the proceeding. Shapiro v. Park Trust Co. 253 Mass. 383. Wilde v. Mahaney, 183 Mass. 455. Since this is so, neither the plaintiff nor another party, after the proceeding has entered upon a hearing, Shaw v. Boland, 15 Gray, 571, is free to deprive him of that adjudication without his assent or an order of the court. He is entitled to a record of the adjudication of his right. Until some record of the disposition of that right appears upon the docket the cause is not, even seemingly, ripe for judgment. On the face of the record in this case not everything has “been done that ought to be done before the entry of a final adjudication upon the rights of the parties.” The plaintiff, as the judge ruled, may have an absolute right
To the rule that a court has no jurisdiction in a cause after the entry of a final judgment, the exception is well recognized that it has jurisdiction to correct errors of the clerk. Karrick v. Wetmore, 210 Mass. 578, 579. Wetmore v. Karrick, 205 U. S. 141. Mason v. Pearson, 118 Mass. 61, 63. Cowley v. McLaughlin, 137 Mass. 221. In Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108, the claimant had not become a party before judgment was entered. Here there was such error. Not only did the record show a reservation of decision at the hearing on the adverse claims which indicated that the case was not ripe for judgment, but there was further error of the assistant clerk. At or before 9:30 a.m. findings on the claims had been made and had been handed to the assistant clerk for record on the docket. It was the duty of the assistant clerk to make such record at once. He did not do so, and he made no report to the clerk in regard thereto after he found that judgment had been entered. Such an error the clerk could have corrected of his own motion. Cowley v. McLaughlin, 137 Mass. 221, 223. There was a failure to record what had been ordered recorded. The court on motion could make its record complete and truthful. Barringer v. Northridge, 266 Mass. 315, 318. Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460.
It is to be noted that the motion was not for vacation of the judgment. It was for an amendment of the record. There was no occasion for any change in the words of the record of judgment. Judgment for the plaintiff on the discharge of the trustees was proper. Dalton-Ingersoll Co.
An entry nunc pro tune was an appropriate order. The matter recorded was dealt with on November 18 and should have been recorded on that day. Warner v. Pittsfield, 231 Mass. 138, 141. Perkins v. Perkins, 225 Mass. 392, 396, et seq.
A report under G. L. (Ter. Ed.) c. 231, § 108, although the rules of court require preparation of a draft report by the party claiming the right, is the report of the presiding judge. He has a right to insert in it what he deems material to a full and true statement of the point of law involved. The draft report omitted reference to much that the court had done on November 18. The judge had authority, and, we think, a duty, to include a statement of these occurrences in his report. Vengrow v. Grimes, 274 Mass. 278, 279. See Silano v. Carosella, 272 Mass. 203, 205; Cohen v. Price, 273 Mass. 303, 306.
It follows that the Appellate Division here was acting within its jurisdiction, and was free from error in passing upon the merits of the judge’s report. The plaintiff by discharging the trustees could not cut off the claimants’ rights to a complete record, nor take a valid judgment, final as to all parties, except by order of the court, at a time when the docket disclosed that decision on their rights was reserved. In the case before us the trial judge was not in error in acting upon a motion to amend the record, and in so amending the record by an entry to be made nunc pro tune.
Orders of Appellate Division affirmed.