247 Mass. 183 | Mass. | 1924
This case arises out of the arrest of the petitioner on an execution issued in favor of OTI ara against him in an action of tort for personal injuries. The debtor, after having been once refused the oath for the relief of poor debt
When the case came on to be heard in the Superior Court, the debtor filed a motion to dismiss his own appeal. It was denied and the debtor appealed. No appeal lies. G. L. c. 231, § 96. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133. The proper way to secure review of such a ruling is by exception.
A requested ruling, that the court had no jurisdiction on the ground that the district court had imposed no sentence upon the finding of fraud and that therefore the matter was not properly before the court, was refused. This point affected the jurisdiction of the Superior Court over the cause. That may be raised at any time. Eaton v. Eaton, 233 Mass. 351, 364. Corcoran v. Higgins, 194 Mass. 291. Devine’s Case, 236 Mass. 588, 592. It has been argued in this court. Therefore it must be considered and decided notwithstanding the fact that no exception was saved.
The statutory provisions respecting the mating and trial of charges of fraud in poor debtor proceedings are found in G. L. c. 224, §§ 6, 40, 41, 43. By § 40 it is provided that such “ charges shall be considered in the nature of an action at law, to which the defendant or debtor may plead guilty or not guilty, and which the court may thereupon hear and determine.” By § 43 it is enacted that if upon trial the debtor “ is found guilty on any such charge,, he shall not benefit by proceedings under this chapter, and may be sentenced to imprisonment for not more than one year.” The right of appeal is declared in § 41 in these words: “A party aggrieved by a judgment rendered under the preceding section may appeal therefrom to the Superior Court . . . .”
The case at bar is governed in principle by Bowler v. Palmer, 2 Gray, 553. That was an appeal from a justice of the peace, where verdict had been rendered in favor of the plaintiff but no judgment entered, to the court of common pleas. The statute permitted an appeal from a judgment. The appeal was taken by the defendant who, after entering the case in the appellate court and answering to the merits; moved to dismiss his own appeal. It was held: “ This action was never withdrawn from the jurisdiction of the justice of the peace before whom it was brought and prosecuted. He had rendered no judgment in it, and it was still pending before him, when an appeal to the court of common pleas was claimed and taken by the defendant. But that appeal was wholly ineffectual, because no party can appeal from any of the proceedings of a justice of the peace, in a civil action, except his final judgment.” Cases like Commonwealth v. McCormack, 126 Mass. 258, Jordan v. Dennis, 7 Met. 590, Wheeler & Wilson Manuf. Co. v. Burlingham, 137 Mass. 387, Granger v. Parker, 142 Mass. 186, and Shour v. Henin, 240 Mass. 240, 243, have no relevancy under the circumstances here disclosed.
The decision by the judge of the district court on the charges of fraud was one step in the procedure. Sentence was necessary before the case would reach the stage of judgment, from which alone the debtor could appeal. The case at bar is still pending in the district court awaiting judgment. Costs of all proceedings on appeal and on exceptions should be awarded against the debtor.
The result is that the exceptions must be dismissed. In the Superior Court the appeal must be dismissed.
So ordered.