Kelly v. Foley

Wait, J.

This is an appeal from orders of an appellate division denying a petition to establish a report and dismissing a report.

Thomas Kelly, trustee, brought an action by trustee process in the Municipal Court of the City of Boston against Helen V. Foley on a promissory note and summoned The Atlantic National Bank of Boston, The First National Bank of Boston and The National Shawmut Bank of Boston as trustees. The First National Bank of Boston answered funds in the names of Helen V. Foley, Helen V. Foley, agent, and Helen V. Foley, trustee. On September 27, 1932, a petition was filed by Nora and Katheryn C. Donoghue claiming the funds standing in the name of Helen V. Foley, trustee, alleging ownership of such funds, praying that the attachment be discharged as to such funds and that the claim be sustained. On the same day Sewall W. Abbott and others, trustees under the will of John Brewster, filed their petition alleging ownership of the funds in The First National Bank of Boston standing in the name of Helen V. Foley, agent, and praying that the attachment as to these funds be discharged and their claim be sustained. The defendant was defaulted on October 3, 1932, when the action appeared on the trial fist. Defendant’s motion to discharge the trustee was denied. The claimants’ petitions were heard by a judge of the court on November 16 and 17, 1932. The judge reserved his decision. On November-18, 1932, at 9:50 a.m. the plaintiff discharged the trustees, and at ten o’clock judgment was entered for the plaintiff on Ms note. On November 23, 1932, the claimants filed a motion that a finding on their claimants’ petitions be made as of Friday, November 18, 1932, at 9:30 a.m. The judge allowed the motion to be filed and allowed the motion. The plaintiff before argument filed requests for rulings of wMch the judge granted, (2) “The judgment entered by tMs honorable court was in conformity with the General Laws,” and (4) “The plaintiff as a matter of law has an absolute right to discharge the trustee at any time.” No objection nor request for report on the granting of these requests was made. The judge denied the other requests for rulings. On November 25,1932, the plaintiff duly claimed a report. A draft report setting out the foregoing was presented for Ms signature to the judge who refused to sign it; but signed a report contaimng, in addition, statements that on November 18, before the opening of the court at 9:30 a.m., the judge made findings establishing the claimants’ petitions and handed them to the assistant clerk who did not file them with the clerk until after 10 a.m. when, it appearing that the trustees had been discharged and the case gone to judgment, nothing further was done by the clerk with regard to the findings. The plaintiff contends that the judgment entered at 10. a.m. on November 18 was a final judgment and that, thereafter, the judge had no jurisdiction over the case. He further urges that since the judge ruled, without exception or request for report, that the plaintiff had an absolute right to discharge the trustee at any time and that the judgment entered was in conformity with the General Laws, those rulings have become the law of tMs case "and, as a result, establish Ms contention that the judgment is final.

The essential question for decision is whether the judgment entered put an end to authority of the court to act further, in the case. A preliminary question, however, is presented — whether the Appellate Division had jurisdiction to deal with the plaintiff’s petition for establishment of the draft report rejected unless as amended by the trial judge, and for any report. The question of jurisdiction may be raised by the court itself, and here the Appellate Division did so. G. L. (Ter. Ed.) c. 231, § 108, provides: “Any party to a cause brought in the municipal court of the city of Boston . . . aggrieved by any ruling on a matter of law by a single justice, may, as of right, have the ruling reported for determination by the appellate division when the cause is otherwise ripe for judgment, or sooner by consent of the justice hearing the same.” The jurisdiction of the Appellate Division is, therefore, confined to questions of law raised before the case is ripe for judgment and does not extend to matters raised after the entry of a valid judgment. The validity of the judgment entered on November 18 is, thus, the test of the jurisdiction here. All that is challenged by the plaintiff’s petition or report took place after the entry of that judgment. He has mistaken his remedy, if the judgment is, as he contends it to be, a valid judgment. See Lynn Gas & Electric Co. v. Creditors National Clearing House, 235 Mass. 114, and Lynn Gas & Electric Co. v. Creditors National Clearing House, Inc. 237 Mass. 505.

The judgment, however, is not valid. The statute G. L. (Ter. Ed.) c. 235, § 2, and Rule 34 of the Municipal Court of the City of Boston (1932) provide that judgment in civil actions and proceedings ripe for judgment shall be entered by the clerk, unless the party entitled thereto otherwise requests in writing and the court otherwise orders, at c ten o’clock in the forenoon of Friday of each week; or at any time on notice and motion in a case ripe for judgment. As stated in the case of the Lynn Gas & Electric Co. v. Creditors National Clearing House, Inc., just cited (237 Mass. 505, 507), it is not easy to give a definition universally applicable to “ripe for judgment.” One sufficiently broad is there quoted from American Wood Working Machinery Co. v. Furbush, 193 Mass. 455, 457: “when, under the last entry, the case seems to have been brought to a final determination, and everything seems to have been done that ought to be done before the entry of a final adjudication upon the rights of the parties.” Within that definition the case before us was not ripe for judgment. See Norcross v. Crabtree, 161 Mass. 55. In Bennett v. Powell, ante, 246, 248, more than a year had elapsed after entry of judgment and thereby a further statutory provision had become applicable. The record before the clerk at ten o’clock on Friday, November 18, it is true, showed a default of the defendant in an action on a promissory note and the discharge of the trustees, but it also showed a hearing on adverse claimants’ petitions in which decisions were reserved. If the adverse claimants were parties, there was no final adjudication upon their rights. It was not for the clerk to decide that they were not parties; or that the discharge of the trustees by the plaintiff without approval by the court precluded action by the court with reference to the adverse claimants which, though not entitling them to a judgment, could, nevertheless, establish rights in them.

An adverse claimant’s right in the trustee process is wholly the creation of statute. He is made a party to the proceeding. Boylen v. Young, 6 Allen, 582. Fuller v. Storer, 111 Mass. 281. Gifford v. Rockett, 119 Mass. 71. Hubbard v. Lamburn, 189 Mass. 296. Zani v. Phandor Co. 281 Mass. 139, 146, 149. He has no right to a judgment in his favor against the trustee, the defendant, or another claimant, or, except for costs, against the plaintiff. Gifford v. Rockett, 119 Mass. 71. Fuller v. Storer, 111 Mass. 281. See Peck Brothers & Co. v. Stratton, 118 Mass. 406. Yet he has a right to an adjudication of the matter of his claim, an adjudication which will become res judicata binding the other parties to the proceeding. Shapiro v. Park Trust Co. 253 Mass. 383. Wilde v. Mahaney, 183 Mass. 455. Since this is so, neither the plaintiff nor another party, after the proceeding has entered upon a hearing, Shaw v. Boland, 15 Gray, 571, is free to deprive him of that adjudication without his assent or an order of the court. He is entitled to a record of the adjudication of his right. Until some record of the disposition of that right appears upon the docket the cause is not, even seemingly, ripe for judgment. On the face of the record in this case not everything has “been done that ought to be done before the entry of a final adjudication upon the rights of the parties.” The plaintiff, as the judge ruled, may have an absolute right to discharge a trustee, and to take judgment against the defendant. See Jarvis v. Mitchell, 99 Mass. 530; Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15; but this does not include, necessarily, a right to prevent the adjudication of the claimant’s rights and the entry of the decision upon them. This last right is what the plaintiff here is seeking to maintain. His argument in substance is that, rightly or not, a final judgment has been entered on the docket, and thereby the jurisdiction of the court over the cause has come to an end.

To the rule that a court has no jurisdiction in a cause after the entry of a final judgment, the exception is well recognized that it has jurisdiction to correct errors of the clerk. Karrick v. Wetmore, 210 Mass. 578, 579. Wetmore v. Karrick, 205 U. S. 141. Mason v. Pearson, 118 Mass. 61, 63. Cowley v. McLaughlin, 137 Mass. 221. In Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108, the claimant had not become a party before judgment was entered. Here there was such error. Not only did the record show a reservation of decision at the hearing on the adverse claims which indicated that the case was not ripe for judgment, but there was further error of the assistant clerk. At or before 9:30 a.m. findings on the claims had been made and had been handed to the assistant clerk for record on the docket. It was the duty of the assistant clerk to make such record at once. He did not do so, and he made no report to the clerk in regard thereto after he found that judgment had been entered. Such an error the clerk could have corrected of his own motion. Cowley v. McLaughlin, 137 Mass. 221, 223. There was a failure to record what had been ordered recorded. The court on motion could make its record complete and truthful. Barringer v. Northridge, 266 Mass. 315, 318. Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460.

It is to be noted that the motion was not for vacation of the judgment. It was for an amendment of the record. There was no occasion for any change in the words of the record of judgment. Judgment for the plaintiff on the discharge of the trustees was proper. Dalton-Ingersoll Co. v. Fiske, 175 Mass. 15. The insertion on the docket of the omitted record, as of November 18, and the filing of the judge’s findings, nevertheless, affected substantially the content of the judgment; because, thereby, the 'adverse claimants obtained a record, binding upon other parties, which established their claims and, so far as they were concerned, freed the funds admitted to have been in the trustees’ possession from further attachment by the plaintiff. Shapiro v. Park Trust Co. 253 Mass. 383.

An entry nunc pro tune was an appropriate order. The matter recorded was dealt with on November 18 and should have been recorded on that day. Warner v. Pittsfield, 231 Mass. 138, 141. Perkins v. Perkins, 225 Mass. 392, 396, et seq.

A report under G. L. (Ter. Ed.) c. 231, § 108, although the rules of court require preparation of a draft report by the party claiming the right, is the report of the presiding judge. He has a right to insert in it what he deems material to a full and true statement of the point of law involved. The draft report omitted reference to much that the court had done on November 18. The judge had authority, and, we think, a duty, to include a statement of these occurrences in his report. Vengrow v. Grimes, 274 Mass. 278, 279. See Silano v. Carosella, 272 Mass. 203, 205; Cohen v. Price, 273 Mass. 303, 306.

It follows that the Appellate Division here was acting within its jurisdiction, and was free from error in passing upon the merits of the judge’s report. The plaintiff by discharging the trustees could not cut off the claimants’ rights to a complete record, nor take a valid judgment, final as to all parties, except by order of the court, at a time when the docket disclosed that decision on their rights was reserved. In the case before us the trial judge was not in error in acting upon a motion to amend the record, and in so amending the record by an entry to be made nunc pro tune.

Orders of Appellate Division affirmed.