303 Mass. 522 | Mass. | 1939
After a final decree in favor of the plaintiff, entered July 25, 1938, the defendants appealed on August 9, 1938, and thereby brought the propriety of that decree before us. On August 23, 1938, Charles H. H. Bailey, one of the defendants, filed as a separate suit what he called a “petition for review,” in which he complained of alleged “errors and inconsistencies” in the final decree, claimed a balance of expenditures over receipts in the management of real estate found to belong to the plaintiff and another defendant in the original case, and ordered conveyed to them, amounting to $4,035.68, and prayed that the final decree be vacated, reviewed, modified and amended. From the denial of this “petition” on October 18, 1938, Charles H. H. Bailey appealed.
Apart from appeal, and certain instances of summary amendment which are inapplicable to the present case (Hyde Park Savings Bank v. Davankoskas, 298 Mass. 421), a final decree can be reviewed or set aside only upon a bill of review. Clapp v. Thaxter, 7 Gray, 384. Thompson v. Goulding, 5 Allen, 81, 82. Morgan v. Steele, 242 Mass. 217. Sullivan v. Sullivan, 266 Mass. 228, 229. McLaughlin v. Feerick, 276 Mass. 180, 182. Kingsley v. Fall River, 280 Mass. 395, 398. The present “petition” can have standing only to the extent that it is in substance a bill of review. It alleges no new evidence or new matter arising or coming to light after, the entry of final decree. Boston & Maine Railroad v. Greenfield, 253 Mass. 391, 397. Handy v. Miner, 265 Mass. 226, ,227. Counelis v. Andreson, 299 Mass. 382. So far as its meagre allegations (Nashua & Lowell Railroad v. Boston & Lowell Railroad, 169 Mass. 157, 161, 162) enable us to classify it, we think it was intended to be a bill of review for error of law appearing on the face of the record. Evans v. Hamlin, 164 Mass. 239. Nashua & Lowell Railroad v. Boston & Lowell Railroad, 169 Mass. 157, 158.
Such a bill of review is comparable to a writ of error at
In the Federal courts the time for bringing a bill of review of this class has been limited by judicial decision to the statutory time allowed for an appeal (Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207, 227; McDonald v. Whitney, 39 Fed. 466; Copeland v. Bruning, 104 Fed. 169; Hendryx v. Perkins, 114 Fed. 801, 804; Continental Oil Co. v. Osage Oil & Refining Co. 69 Fed. [2d] 19, 24), the alternative remedy. Osborne v. San Diego Land & Town Co. 178 U. S. 22, 32.
Before the entry of final decree, there is no need and no room for a bill of review, because the case remains fully within the control of the judge, who may grant a rehearing if justice requires one. Plaisted v. Cooke, 181 Mass. 118. John Simmons Co. v. Grier Brothers Co. 258 U. S. 82, 88. Gerrish v. Black, 109 Mass. 474, 477. Kevorkian v. Moors, 299 Mass. 163, 166. During the pendency of an appeal from a final decree, as in the present case, a different reason prevents the prosecution of a bill of review.
Though a bill of review is filed, entitled and entered as a new and separate case, in which process issues for service on the defendants in the bill of review (Home Street Railway v. Lincoln, 162 Fed. 133, 138; see also Lynn Gas & Electric Co. v. Creditors National Clearing House, 235 Mass. 114), it is nevertheless such a direct mode of attack upon the earlier final decree in the original case that it can be brought only in the court in which that case and that decree remain of record. Nashua & Lowell Railroad v. Boston & Lowell Railroad, 169 Mass. 157, 161. Duffy v. Hogan, 203 Mass. 397, 405. Barrow v. Hunton, 99 U. S.
We have left for consideration the appeal from the final decree.
The question in this case is not, as the defendants contend, whether a resulting trust arose in favor of the partnership. The case is one of constructive trust. The plaintiff and Harrison W. Bailey as partners were fiduciaries with relation to each other. Charles H. H. Bailey was found to be a mere “straw” or agent for his son Harrison W. Bailey in taking in his own name the title to the real estate in question, and his status was not changed by his advance of the necessary money as a loan to his son. The case stands as it would have stood if the partner Harrison W. Bailey himself-had taken title to the-real estate in his own name and for his own benefit while pretending to the plaintiff that the real estate was being bought for and in
The provision in the final decree “That the defendant Charles H. H. Bailey shall account to the receiver for all rents and profits derived from the real estate . . . for the period of time that said real estate has been standing in the name of Charles H. H. Bailey” enables him to obtain a decree against the partnership for the balance of expenditures over receipts which exists according to his contention. An accounting involves the possibility of affirmative relief to either party. Goldthwait v. Day, 149 Mass. 185. Zuckernik v. Jordan Marsh Co. 290 Mass. 151, 153. Chopelas v. Chopelas, ante, 33, 35. The decree rightly required a conveyance from him to the partnership for which a receiver was appointed, without first giving him security for what may prove to be owed him or indemnity against obligations that he may have assumed. Cann v. Barry, 298 Mass. 186, 189. These matters can be dealt with during the progress of the receivership.
The declaration in the final decree that certain machinery, the title to which stood in the name of Charles H. H. Bailey, is the property of Harrison W. Bailey, and is chargeable with the payment of the balance due to the plaintiff on the partnership accounting, is supported by the finding of the master. The exceptions of the defendants to that finding as wrong in point of fact, cannot be sustained in the absence of the evidence, of a complete statement of the supporting subsidiary findings from which a contrary conclusion should be drawn, or of subsidiary findings inconsistent with the finding in question. It was discretionary with the judge to recommit the case for a report of the evidence or subsidiary findings. No reason appears for reversing his refusal to recommit the case for that purpose. MacLeod v. Davis, 290 Mass. 335. Dodge v.
Other questions raised by the several appeals from interlocutory decrees have not been argued. Boston v. Dolan, 298 Mass. 346, 355-356.
We find ^nothing in the record to warrant a conclusion that Charles H. H. Bailey has occupied any of the real estate, or has become responsible for any occupation by his son Harrison W. Bailey. The part of paragraph 8 of the final decree that requires Charles H. H. Bailey to account for the fair rental value of the part of the real estate occupied by the defendants is to be struck out. As so modified the final decree is affirmed with costs.
Interlocutory decrees affirmed.
Final decree as modified affirmed with costs.
Final decree dismissing bill of review affirmed with costs.
