Green v. Clerk of Municipal Court

74 N.E.2d 19, 321 Mass. 487, 1947 Mass. LEXIS 679
CourtMassachusetts Supreme Judicial Court
DecidedJune 25, 1947
StatusPublished
Cited by6 cases

This text of 74 N.E.2d 19 (Green v. Clerk of Municipal Court) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. Clerk of Municipal Court, 74 N.E.2d 19, 321 Mass. 487, 1947 Mass. LEXIS 679 (Mass. 1947).

Opinion

Dolan, J.

This petition for a writ of mandamus comes before us upon the report of the judge of the Superior Court who ruled that he had no jurisdiction to order the correction by the respondent clerk of the Municipal Court of the Dorchester District of the record of that court, described hereinafter, and ordered that the petition be dismissed.

The judge found that the following facts were admitted by the respondent’s answer: “1. . . . The respondent, Anthony A. McNulty, is the clerk of the Municipal Court of the Dorchester District of the City of Boston in our County of Suffolk. 2. . . .On or about the 16th day of April, 1941, one Sarah M. Toy of Boston made application for supplementary proceedings against . . . [the] petitioner in said court under the provisions of c. 224 of the General Laws and acts amendatory thereof. 3. . . . Thereafter, on or about the 13th day of November, 1941, the said Sarah M. Toy filed charges of fraud under the provisions of § 19 of said act as to Morris Green setting [488]*488forth that . . . [the] petitioner had fraudulently conveyed, concealed or otherwise disposed of the whole or part of his property with intent to secure it to his own use or to defraud his creditors. 4. . . . Thereafter . . . [the] petitioner, after hearing on said charges, was found not guilty thereof by said court, and the judgment creditor thereupon appealed from said finding. 5. . . . Thereafter, on the 16th day of December, 1943, the respondent made the following entry upon the record of said court, to wit: ‘Creditor recognizes with Dora Tatelman and Anna Baker as sureties/ and did further on the said day make an extended memorandum of recognizance, a copy of which is hereto annexed and marked exhibit A, wherein the respondent set forth that Dora Tatelman and Anna Baker having been deemed sufficient were accepted as sureties on said recognizance with Sarah M. Toy as principal, and that said principal and sureties were personally present and acknowledged themselves to be jointly and severally indebted to the petitioner and another judgment debtor in said proceedings in the sum of $100, and thereafter, on or about the first Monday of January, 1944, transmitted said record to the Superior Court for the County of Suffolk.”

The report of the judge continues as follows: “I find that the petitioner, Morris Green, was foúnd not guilty on charges of fraud by Judge D. A. Rose on December 16, 1943. The finding was made shortly after 11:00 a.m. The creditor, Sarah M. Toy, thereupon appealed from the finding. The creditor and one surety then went into the clerk’s office and conferred with Frederick E. Simmons, assistant clerk of the court. The creditor was advised by the clerk that two sureties were needed to perfect a proper recognizance in connection with an appeal to the Superior Court. After consultation with Judge Rose, the matter, so far as entering into a recognizance was concerned, was continued until two o’clock. The court adjourned at twelve forty-five for the day. At two o’clock the creditor brought two sureties to the court house, Dora Tatelman and Anna Baker. The creditor remained outside, and the two sureties came before Jennie Thurlow, the second assistant clerk. [489]*489Jacob Friedberg, attorney for the debtor, was present and made no objection to the proceedings. The sureties were examined by Mrs. Thurlow and made a statement under oath as to their assets and liabilities. Court was not in session. Judge Rose was not present. The creditor was not present, and the sureties did not in fact acknowledge themselves' to be jointly and severally' indebted to the petitioner. I find no recognizance was entered into by the creditor and two sureties. An entry was made on the docket of the clerk that ‘creditor recognizes with Dora Tatelman and Anna Baker as sureties.’ An extended memorandum of recognizance for the judgment debtor was also entered on the docket as set forth in exhibit A, attached to the petitioner’s amended petition. I find that these entries are erroneous and do not correctly state the facts. On December 30, 1943, a motion of the debtor, Morris Green, to vacate the creditor’s appeal was ‘denied without prejudice to the defendant’s right to present the same motion to the Superior Court’ by the judge of the Dorchester Court. On January 12, 1944, a motion to dismiss the creditor’s appeal was filed in the Superior Court. This motion was denied ... on February 3, 1944. Thereafter, after a judgment entered against the petitioner in behalf of the creditor in the Superior Court, the case was appealed to the Supreme Judicial Court. On March 26, 1946, the exceptions of the defendant Morris Green were overruled by the Supreme Judicial Court. The case is reported in 319 Mass. at page 354 [Toy v. Green]. Thereafter, on April 17, 1946, the present petition was filed. Supplementary docket entries of the Dorchester Court are correctly set forth in exhibit A of the respondent’s answer. Other docket entries of that court, and the record of the further proceedings are correctly set forth in exhibit 1, the petitioner’s bill of exceptions filed in the Supreme Judicial Court. The entries begin on page 13. I find that the petitioner has not been guilty of loches, and that the record is erroneous. I rule, that ... I have no jurisdiction to order the correction of the record in the Municipal Court of the Dorchester District. I therefore order that the [490]*490petition be dismissed. ... I now report the question of law involved in the above ruling to the Supreme Judicial Court for determination. If I was in error, the case is to be remanded to the Superior Court for further proceedings. If I was correct in said ruling, such ruling is to be made as justice and equity may require.”

The exhibits referred to in the report were expressly incorporated therein by reference. An examination of them discloses that on April 1, 1946, the petitioner filed in the Municipal Court of the Dorchester District, hereinafter referred to as the District Court, the following “motion to amend record. And now come the judgment debtors, Morris Green and Sadie Green and in order that the record may conform to the true facts, move to amend the record and the extended memorandum on recognizance (1) By striking out the entry under date of December 16, 1943, ‘Creditor recognizes with Dora Tatelman and Anna Baker as sureties’; (2) By striking out the ‘extended memorandum on recognizance’ and inserting in place thereof the following: ‘December 16, 1943, 2 p.m. Dora Tatelman and Anna Baker presented themselves to the second assistant clerk of court, the court having adjourned and no justice being present, and neither creditor nor debtors being present, and offered themselves as sureties for Sarah M. Toy, judgment creditor, and thereupon were examined by the second assistant clerk with reference to their assets and liabilities and signed and swore to a statement thereof.’ ” This motion was heard on April 1, 1946, by the presiding judge of that court who reserved decision; on April 3, 1946, he denied that motion; and on April 12, 1946, the judge entered the following order on the same motion: “Motion denied because of length of time involved and independently of the facts.” The docket of that court concerning the proceedings there involved contains no entry following that of the denial on April 12, 1946, of the motion to amend. The record of a court imports verity. Bryer v. American Surety Co. 285 Mass. 336, 337, and cases cited. See also Haskell v. Cunningham, 221 Mass. 49, 53.

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Cite This Page — Counsel Stack

Bluebook (online)
74 N.E.2d 19, 321 Mass. 487, 1947 Mass. LEXIS 679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-clerk-of-municipal-court-mass-1947.