Erlund v. Manning

Allen, J. The principal question raised by the exceptions is whether the order of affirmance could legally be passed by a single justice, or whether it could only be done by the full court. An appeal from a decree of a single justice in a suit in equity, if not prosecuted or entered, can only be affirmed by the full court, because by statute, if such appeal is taken, “all proceedings under such decree shall be stayed, and such appeal shall thereupon be pending before the full court, who shall hear and determine the same, and affirm, reverse, or modify the decree appealed from, as circumstances may require.” Pub. Sts. c. 151, § IB. Appeals in probate cases stand on the same footing. Pub. Sts. c. 156, § 11. Gray v. Gray, 150 Mass. 56. But exceptions and [446] other cases of appeals fall under St. 1888, c. 94, amending Pub. Sts. c. 150, § 16, and the order of affirmance may be made by the court in which the appeal was taken or the exceptions allowed. It is contended that the language of this statute shows that it is only applicable to cases coming from the Superior Court. We think, however, that it applies as well to cases heard or tried before a single justice of this court as to cases coming from the Superior Court. Exceptions which have been allowed in either court can only be entered in the full court, and when the statute speaks of a neglect to enter the question in the Supreme Judicial Court, it means a neglect to enter the same upon the docket of the full court, where alone it is cognizable. Ingalls v. Ingalls, 150 Mass. 57. The plaintiff’s application for affirmance might be made and signed by attorney. It is established by the finding of the justice, that due notice of the application was given to the defendant. It was not necessary under St. 1888, c. 94, to give notice to the persons summoned as trustees. The defendant makes certain objections founded on Pub. Sts. c. 153, § 12, but they have no relevancy to the question before us. The objection that the application for affirmation was on its face an application by the defendant, cannot avail. The error was obvious, and would no doubt have been corrected if attention had been called to it at the hearing before the single justice. So far as appears, the objection on this ground was not then taken. The application was in the interest of the plaintiff, it prayed to have judgment entered for the plaintiff, it was signed by the attorney for the plaintiff who was described as such, and in the order of affirmance it was recited to be an application of the plaintiff. None of the objections being valid, the entry must be, Exceptions overruled.