Brigham's Cafe, Inc. v. Superior Court

148 N.E.2d 276, 337 Mass. 767

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1958
• Status: Published

Opinion

Petition dismissed. The petitioner appeals from the refusal of a single justice to issue an order of notice upon a petition for writ of mandamus. The petition seeks an order to “the Superior Court to cause adequate orders to be entered and enforced to compel the restoration of the property of the petitioner taken from the control and custody of the court through its receiver.” It is alleged that in April, 1954, in the Superior Court a receiver of the petitioner’s assets was appointed; that in January, 1956, the order was vacated; that in the meantime a third person, whose name is given, interfered with those assets; that his acts constituted contempt; that the plaintiff filed a “petition for contempt of court”; but that a judge of the Superior Court refused to issue an order of notice. It does not appear that any appeal from any order of the Superior Court was taken. The petition for a writ of mandamus plainly will not lie as a substitute for ordinary appellate procedure. Rines v. Justices of the Superior Court, 330 Mass. 368, 371-372. Further, this remedy is in large sense discretionary. Nichols v. Dacey, 329 Mass. 598, 600-601.