Mason v. Lewis

115 Mass. 334, 1874 Mass. LEXIS 212

Opinion

Gray, C. J.

By the Gen. Sts. c. 117, § 14, probate appeals are to have the same rights as to hearing and determination as cases in equity. The Gen. Sts. c. 113, § 8, allow an appeal in equity to be claimed from the final decree of a single justice to the full court at any time within thirty days. But no statute provides that, when once claimed and entered, it shall not be heard by the full court for thirty days. The practice has been, in accordance with the St. of 1864, c. 111, as soon as an appeal is claimed of record, to enter it forthwith in the full court, and to treat it as before the court in ten days after it is taken. It is admitted that ten days have elapsed in this case. The full court therefore has cognizance of the appeal.

The decree of the single justice was rendered upon the default of the appellants. Ho error of law appears upon the record. Ho evidence was taken before the single justice, and no report requested or made of the hearing before him. There is nothing before us therefore by which his decree can be revised in matter of fact. Wright v. Wright, 13 Allen, 207. Ross v. Harper, 99 Mass 175. Smith v. Townsend, 109 Mass. 500.

The application foi the appointment of a commissioner to take evidence comes too late. It should have been made before the hearing by a single justice. The full court cannot order evidence to be taken, except in special cases of accident or mistake, when “ further evidence ” is required, in addition to evidence duly taken and reported before a single justice. Gen. Sts. c. 113, § 21. 35th Rule in Chancery, 104 Mass. 574.

Decree affirmed.