Cunningham v. First Banker's Union, Inc.

156 N.E. 708, 259 Mass. 595, 1927 Mass. LEXIS 1237

• Court: Massachusetts Supreme Judicial Court
• Decided: May 21, 1927
• Status: Published

Opinion

Wait, J.

Hearing upon the merits of this cause was held in the Superior Court on May 25, 1926, and an order for decree dismissing the bill with costs was filed on May 28,1926. Final decree was entered June 2, 1926. The plaintiffs filed a claim of appeal on June 7, 1926. So far as appears, they took no action toward perfecting the appeal until, on June 21, counsel inquired of the commissioner who took the testimony when she could transcribe her notes. He was informed that she had orders for transcripts to be delivered before this one, and was about to be on duty in the lobby of the court, so that she could not get out the testimony before September. He gave no order then to prepare the transcript, and did nothing further about preparation until after receiving notice of defendant’s motion that the appeal be dismissed for lack of prosecution. This motion was filed July 9; notice was mailed on that day for hearing on July 16; it was heard July 23, and was then denied.

The defendants claimed appeal on August 10. The refusal to dismiss, as appears from its terms, is based upon the facts stated above. They do not justify the order. Inquiry of the commissioner is not the equivalent of an order for the transcript. No order was given from June 7 until July 12. Obviously this is not “forthwith,” as required by G. L. c. 214, § 19; nor “as soon as may be,” the language of G. L. c. 231, § 135.

The order must be reversed, the plaintiffs’ appeal dismissed, and the decree dismissing the bill affirmed. Wright v. Wright, ante, 74. Anderson v. Second Society of Universalists, ante, 36. Boston Safe Deposit & Trust Co. v. Wickham, 254 Mass. 471. Mazzuchelli v. Seretto, 254 Mass. 159. Silverstein v. Daniel Russell Boiler Works, Inc. 254 Mass. 137.

So ordered.