236 Mass. 326 | Mass. | 1920
This is a motion made before the full court to dismiss an appeal from a decree of the Probate Court on the ground of want of prosecution in failing to have printed required papers for consideration by this court and to affirm the decree of the Probate Court. The motion is opposed on the ground that there is no jurisdiction to entertain the motion. The facts are that the petition was entered in the Probate Court on May 21, 1920, and final decree was entered on June 15, 1920. Within less than twenty days thereafter the petitioner filed in the Probate Court an appeal. He caused to be prepared and filed with the clerk of this court a single copy of the papers in the Probate Court and paid the required entry fee and did nothing more.
It is provided by St. 1919, c. 274, § 1, that “A person who is aggrieved by an order, decree or denial of a Probate Court or of a judge of that court, in any proceeding begun after this act takes effect, may, within twenty days after the entry thereof, appeal from the same to the Supreme Judicial Court, and the appeal shall be heard and determined by the full court, which shall have the like powers and authority in respect thereto as upon an appeal in a suit in equity under the general equity jurisdiction . . and by § 2, that "The appeal shall be pending before the full court as soon as it has been filed in the Probate Court, and proper copies of papers in the proceeding, as specified in section twenty-one’ of chapter one hundred and fifty-seven of the Revised Laws, shall be prepared by the register and transmitted to the Supreme Judicial Court and entered in the docket of the full court.” That chapter made a radical change in the practice concerning appeals from the Probate Court. Before it went into effect, appeal lay from all decrees entered by the Probate Court, with exceptions not here material, directly to the Supreme Judicial Court for the county, where a new hearing was had both upon facts and law before a single justice of this court. That no longer is the practice in view of c. 274. There is now no review of the findings of fact
The case at bar comes clearly within the provisions of St. 1915, c. Ill, amending R. L. c. 173, § 115, wherein it is provided that if "an appellant or an excepting party or if the plaintiff in a case reported, at law, in equity or in probate proceedings, neglects to enter the appeal, exceptions or report in the Supreme Judicial Court or to take the necessary measures by ordering proper copies to be prepared or otherwise for the hearing of the case, . . . the court in which the appeal was taken or by which the exceptions were allowed or the case reported may, upon the application of the adverse party and after notice to all persons interested, order that the appeal be dismissed, the exceptions overruled or the report discharged, and that the judgment, opinion, ruling, order or decree appealed from, or excepted to, be affirmed.” See R. L. c. 219, § 36. The method there provided is exclusive. The former practice of application to this court, Gassett v. Cottle, 10 Gray, 375, thereby has been abrogated. Ingalls v. Ingalls, 150 Mass. 57, 58. Erlund v. Manning, 160 Mass. 444. Daly v. Foss, 209 Mass. 470. Carpenter v. Fleming, 177 Mass. 525. Griffin v. Griffin, 222 Mass. 218. The practice set forth in Cobb v. Rice, 128 Mass. 11, no longer prevails because it rested upon a statute repealed by St. 1900, c. 372, § 1. Where a party neglects seasonably to attend to the transmission of required copies for consideration by the full court, the same procedure prevails as where in other respects there is failure to take the steps described in St. 1915, c. 111. It follows that this application should have been made in the Probate Court, and that it must be dismissed in this court.
Motion dismissed.