Boston Five Cents Savings Bank v. Johnson

Massachusetts Appeals Court

Boston Five Cents Savings Bank v. Johnson

338 N.E.2d 355, 3 Mass. App. Ct. 790

CourtMassachusetts Appeals Court

DecidedDecember 5, 1975

StatusPublished

Cited by2 cases

This text of 338 N.E.2d 355 (Boston Five Cents Savings Bank v. Johnson) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Boston Five Cents Savings Bank v. Johnson, 338 N.E.2d 355, 3 Mass. App. Ct. 790 (Mass. Ct. App. 1975).

Pincite

Opinion

The plaintiff holds a mortgage with a statutory power of sale given by the defendants on land in Weston. Pursuant to St. 1943, c. 57, as amended by St. 1945, c. 120, and St. 1959, c. 105, the plaintiff brought a bill seeking authorization to foreclose the mortgage. Notice issued to the defendants and “all persons entitled to the benefit of the Soldiers’ and Sailors’ Civil Relief Act of 1940 as amended” (50 U. S. C. App. § 501 et seq., as amended). The defendants filed an appearance and answer which were struck on the plaintiff’s motion. Subsequently, a motion by the plaintiff to take the bill pro confesso was allowed pursuant to which an interlocutory decree was entered. The judgment which followed authorized the plaintiff to make entry and sell the property covered by the mortgage. The defendants then filed a document which purports to be an appeal from the interlocutory decree (but see G. L. c. 231, § 113, as amended through St. 1973, c. 1114, § 202; Foreign Auto Import, Inc. v. Renault Northeast, Inc. 367 Mass. 464, 467-471 [1975]), but which we treat as an appeal from the final judgment. However, the defendants have failed to demonstrate that they have standing in this proceeding since the record does not indicate that any of them is entitled to benefits under the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, and their appearance and answer were, therefore, properly struck. See St. 1959, c. 105; Beaton v. Land Court, 367 Mass. 385 (1975).

Judgment affirmed.

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The plaintiff holds a mortgage with a statutory power of sale given by the defendants on land in Weston. Pursuant to St. 1943, c. 57, as amended by St. 1945, c. 120, and St. 1959, c. 105, the plaintiff brought a bill seeking authorization to foreclose the mortgage. Notice issued to the defendants and “all persons entitled to the benefit of the Soldiers’ and Sailors’ Civil Relief Act of 1940 as amended” (50 U. S. C. App. § 501 et seq., as amended). The defendants filed an appearance and answer which were struck on the plaintiff’s motion. Subsequently, a motion by the plaintiff to take the bill pro confesso was allowed pursuant to which an interlocutory decree was entered. The judgment which followed authorized the plaintiff to make entry and sell the property covered by the mortgage. The defendants then filed a document which purports to be an appeal from the interlocutory decree (but see G. L. c. 231, § 113, as amended through St. 1973, c. 1114, § 202; Foreign Auto Import, Inc. v. Renault Northeast, Inc. 367 Mass. 464, 467-471 [1975]), but which we treat as an appeal from the final judgment. However, the defendants have failed to demonstrate that they have standing in this proceeding since the record does not indicate that any of them is entitled to benefits under the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended, and their appearance and answer were, therefore, properly struck. See St. 1959, c. 105; Beaton v. Land Court, 367 Mass. 385 (1975).

Judgment affirmed.

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Bluebook (online)

338 N.E.2d 355, 3 Mass. App. Ct. 790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boston-five-cents-savings-bank-v-johnson-massappct-1975.

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