Agel v. Steuer

Rugg, C. J. This is a writ of review. It was sued out on May 15, 1916. On the petition for the writ of review seasonably filed an order was entered on November 29, 1915, allowing the writ upon filing a bond. The bond was filed and approved on December 9, 1915. It is required by R. L. c. 193, § 27, that the “writ of review shall be sued out within three months after the order granting the petition.” Manifestly there was no compliance with the literal terms of the statute. The petitioners seek to avoid its force by the fact that the respondent in this writ, who was plaintiff in the action sought to be reviewed, on December 29, 1915, brought a petition for a writ of certiorari to quash the proceedings whereby the petition for a writ of review had been allowed. That petition was dismissed by a justice of the Supreme Judicial Court on January 21,1916. It does not appear that any exceptions were taken on that petition. Even if exceptions had been taken, the time for filing them would have expired on February 10, 1916. There can be no appeal from a decision of a justice of this court in certiorari or other proceedings at law. Channell v. Judge of Central District Court of Northern Essex, 213 Mass. 78. The utmost assumption which can be made in favor of the petitioners (but without intimating that this is the law in the face of the terms of the statute), is that the time of the pendency of the petition for certiorari may be deducted from the three months’ period required by the statute. Even on this assumption the statutory period of three months, computing it from the time when the order allowing the petition for a writ of review became effective by the filing of the bond, expired on April 2, 1916. There is no ground for the contention of the petitioners sought to be supported by Tyndale v. Stanwood, 186 Mass. 59, that the order allowing the petition for the writ of review was not effective, at least during all the time, before the bringing of the petition for the writ of certiorari. Making every assumption in favor of the petitioners they must fail. The order denying the plea to the jurisdiction and motion to dismiss is reversed and the writ must be dismissed. So ordered.