205 Mass. 529 | Mass. | 1910
These are appeals and exceptions in two eases brought in the Land Court for the registration of titles. We will consider first the appeal in each case from the order of the Superior Court, made on January 21, 1910, revoking an order of November 29, 1909, that the exceptions be entered in the Supreme Judicial Court on or before January 1, 1910, and in default thereof that they be overruled and the rulings and orders excepted to affirmed, unless the court, for good reason, should extend the time. The respondents having failed to enter the exceptions within the time prescribed, and having entered them afterward without a further order, they were dismissed upon motion by the Supreme Judicial Court. Thereupon the petitioner filed in each case a motion that the final decision be certified to the Land Court, and the respondents filed a motion that the order of November 29 be revoked, and the time for entering the exceptions be extended. The court denied the former and allowed the latter of these motions, and the petitioner appealed in each case.
The cases were pending in the Superior Court after the order of the Supreme Judicial Court dismissing the exceptions. No final judgment or order had been entered in the Superior Court in pursuance of the order of November 29, and the cases were there for disposition. It was therefore in the power of the Superior Court to deal with them in any proper way, and to revoke the former order if good reason was shown for so doing. The appeal is not well founded, and the last order of the Superior Court is affirmed.
In the first of these cases there was a decision in favor of the petitioner and an order for the registration of the title in the Land Court, from which the respondents appealed to the Superior Court. Issues were framed by the Land Court for trial in the Superior Court, as required by the statute. The petitioner filed in the Superior Court a motion for the dismissal of the appeal, which was allowed, and exceptions were taken from the order of dismissal. The reasons for the motion to dismiss were .stated therein as follows:
“ First, because the report of the judge of the Land Court is*534 not a full report of the facts found by Mm so far as they relate to, or bear upon, any questions involved in this appeal, and does not comply with the requirements of St. 1905, c. 288, and the petitioner is thereby deprived of the benefit of the presumption in its favor which the statute undertakes to secure to it.
“ Second, because the judge of the Land Court has made no specific finding upon the issues, or either of them, framed for this court upon this appeal.
“ Third, because it does not appear that the issues framed for the jury in this court were material to the decision of the Land Court, from which this appeal was taken.
“ Fourth, because there was no trial in the Land Court upon the facts.
“ Fifth, because it does not appear that the decision of the Land Court was based upon any disputed issue of fact.
“ Sixth, because it appears that the decision of the Land Court was based upon a question of law, and not of fact.
“ Seventh, because it appears that the decision of the Land Court was based solely upon an inspection of the record title to the land described in the petition, and involved only the construction of the conveyances and other instruments forming the chain of that title, and that error, if any, in said decision of the Land Court, was error of law and not of fact, the remedy for which is by appeal or exceptions to the Supreme Judicial Court, and not by appeal to this court.”
The report of the judge of the Land Court
The judge was not obliged to make specific findings upon the issuer framed for the Superior Court, as it is assumed in the second reason that he was. The issues were not framed until after his findings had been made.
To the third, fourth, fifth, sixth and seventh of the reasons, the answer is that the judge framed issues for the Superior Court, and this official act establishes prima facie the proposition that they are pertinent and ought to be tried. In this record there is nothing to show that they were not material to the decision of the judge, nor that his decision was not founded in part upon questions of fact. It is to be assumed that all material facts were considered and passed upon in the Land Court.
In the long and elaborate decision and in the report in the second case there are statements which make it seem probable that these issues are immaterial, and that the answers to them would not affect the decision of the Land Court in this first case, which, except in the particulars referred to in these issues, is not appealed from. But the decision and the report in that case, although founded in part upon the same facts as the decision in this, are not a part of the record in this first case, and cannot be considered in the decision of it. It follows that the judge of the Superior Court was wrong in dismissing this appeal, upon the record before him, and the exception to his order must be sustained.
In the second case a bill of exceptions was filed by the petitioner, founded on the adverse decision of the judge upon its motion in the Superior Court to prove facts and to have the record amended, and to dismiss the respondents’ appeal because it was not entered within the time prescribed by the statute. It appears upon the affidavit of the assistant clerk of the Superior Court — and the petitioner offered proof of these facts — that the appeal papers, which were to be filed on February 14,1908,
What is it to enter an appeal in the Superior Court and to file all material papers in that court ? It cannot be less than to make the appeal and the papers a matter of record in the court. On the entry of the appeal the suit is pending in the appellate court. Every case pending there should be a matter of record from the moment of its inception in that court. The only place for making a record or for keeping a record of a case in the Superior Court is in the clerk’s office, except as such records may be made in the court and kept for the time being in the cdurt, when it is actually sitting elsewhere. “If the appellant does not duly prosecute his appeal within the time limited, the original order, decision or decree shall stand as if no appeal had been taken.” R. L. c. 128, § 15. Suppose that, immediately after the expiration of the time limited, action is proposed to be taken upon the original decision or decree. How can it be determined whether the appeal has been prosecuted, except by an examination of the record in the clerk’s office ? If the papers are in the
In the Estate of Giovanni Sbarboro, 63 Cal. 5, the question was whether a petition to revoke the probate of a will was seasonably filed. It was delivered to the judge at his private residence on the last day of the year allowed by the statute. The next morning he took it to the office of the clerk and directed him to file it as of the day before. It was held that, “ as the petition had not been filed in the court within the year, it was too late to file it at all.” A part of the decision in Edwards v. Grand, 121 Cal. 254, is said in the headnote to be, that “ Delivery of an instrument to the proper officer at a place other than the office where it is required to be filed, is not sufficient, even though the officer should indorse it as properly filed.” See Schulte v. First National Bank of Minneapolis, 34 Minn. 48. Under recording acts, it is generally, and so far as we know universally, held that the instrument must be delivered at the recording office, and that delivery elsewhere will not constitute a record, even though the officer indorses it as filed at the time of delivery. See cases cited in 24 Am. & Eng. Encyc. of Law, (2d ed.) 99. We are of opinion that an entry of an appeal in the Superior Court, especially where there is a particular requirement that the papers must be filed in that court, means an entry with the proper officer of the court in the place where its records are kept, so that, if the clerk does his duty, it will immediately appear upon the records of the court that the entry has been made. We are of opinion that the receipt of the papers by the clerk or an assistant clerk of the court at his place of residence, at a distance from the office where the records of the court are made and kept, is not an entry in court, and that leaving the papers there, whatever indorsement the clerk puts upon them, is not a filing of them in the court. Most of the reasons of the rule relative to ordinary recording offices apply as well to such a filing and such records in the Superior Court. See Cheney v. Assessors of Dover, ante, 501, relative to the entry of an appeal from an application to the assessors for an abatement of a tax, and Orne v. Barstow, 175 Mass. 193. We are of opinion that
The provision of the R. L. c. 159, § 18, that “ For hearings, and for making, entering and modifying orders and decrees in equity causes, by one justice, and for issuing writs in such causes, the courts shall always be open in every county, except on legal holidays,” does not mean that there is a court which is open wherever a clerk or assistant clerk happens to be found, without the presence of any justice. It has no application to the question before us.
It is important to the rights of parties that such provisions of statutes should be strictly observed. Bergen v. Jones, 4 Met. 371, 377. Bartlett v. Slater, 183 Mass. 152, 153. Briggs v. Barker, 145 Mass. 287. Snow v. Dyer, 178 Mass. 393. De Bang v. Scripture, 168 Mass. 91.
Under the statute and the above decisions it is plain that, if the delivery of the papers to the assistant clerk at his residence, in the evening, was not an entry of the appeal in court and a filing of the papers in court, the evidence should have been received, the record amended, and the appeal dismissed as entered too late. We are of opinion that these exceptions of the petitioner should be sustained.
The parties have argued fully the respondents’ exceptions in the second case, which present for our consideration the question whether the appeal was rightly dismissed for the reasons given. This bill of exceptions deals with the merits, and as we are of opinion that a proper consideration of it shows that the respondents could not have prevailed if the exceptions had been entered seasonably, we are inclined to discuss it briefly. One of its statements is in these words: “ It was admitted that the only point raised by the issues framed by the Land Court in both cases was the location of the Vinal-Jenkins line, so-called.” We infer that the issues in this case were dismissed on the ground that they were immaterial to the decision. This decision recites, as does also the report of the judge of the Land Court, referring to the description in the deed from the Riddle heirs to Newcomb,
Last order of the Superior Court affirmed; exceptions to the order dismissing the appeal in the first case sustained; exceptions to the order excluding evidence that the appeal in the second case was not seasonably entered sustained.
The report of the judge of the Land Court stated: “ From a study of the report of the official examiner, consisting of an abstract of what he reported to be the entire record title to the premises since 1808, I found good record title in the petitioner, with the boundary lines over the flats running in continuance of the boundary lines on the upland protracted to low water mark, and subject only to a mortgage to the Old Colony Trust Company, to the rights of the public below high water mark, and to certain attachments, and ordered a decree accordingly which was subsequently entered.
“ The matter set forth in the issues on this appeal was not presented before me otherwise than as it might appear from the deeds in the chain of the petitioner’s record title and from the answers filed by the respondents. As to the latter, the case had been specially assigned for trial and the respondents had defaulted. As to the former, I found, from an examination of the records submitted to me, title in the petitioner as above stated.”