Metropolitan Finance Corp. v. Maryland Casualty Co.

Massachusetts Supreme Judicial Court

Metropolitan Finance Corp. v. Maryland Casualty Co.

56 N.E.2d 592, 317 Mass. 18, 1944 Mass. LEXIS 776

CourtMassachusetts Supreme Judicial Court

DecidedSeptember 13, 1944

StatusPublished

This text of 56 N.E.2d 592 (Metropolitan Finance Corp. v. Maryland Casualty Co.) 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

Metropolitan Finance Corp. v. Maryland Casualty Co., 56 N.E.2d 592, 317 Mass. 18, 1944 Mass. LEXIS 776 (Mass. 1944).

Pincite

Opinion

Spalding, J.

The petitioner was authorized by a decree of the Probate Court to bring an action on the bond of the administrator of the estate of Winifred P. Boylan. The surety on the bond appealed. The petitioner has moved that the appeal be dismissed, contending that the decree is not appealable. The motion must be allowed.

With respect to the subject of appeal there is a distinction between a decree granting leave to sue on the bond of an administrator and one denying it. In the case of a refusal an appeal lies. Robbins v. Hayward, 16 Mass. 524, 528. Jones, appellant, 8 Pick. 121. Fay v. Rogers, 2 Gray, 175, 177. Richardson v. Oakman, 15 Gray, 57. Putney v. Fletcher, 140 Mass. 596. Such a decree being in effect final, the petitioner is aggrieved.

However, where leave to sue on the bond is granted that action is not appealable. Jones, appellant, 8 Pick. 121. [19]*19Fay v. Rogers, 2 Gray, 175. Richardson v. Oakman, 15 Gray, 57. Bennett v. Woodman, 116 Mass. 518. Choate v. Jacobs, 136 Mass. 297, 298. Putney v. Fletcher, 140 Mass. 596. In the Bennett case it was said at page 519: “The administratrix has no such interest in the matter of granting leave to bring an action upon her bond, as to give her a right to resist the application therefor, or to be heard upon it. . . . We think it must follow from the same consideration, that, when a suit has been brought upon the bond, the administratrix and her sureties are not entitled to contest the validity of the order of the Probate Court authorizing it.” It has been held that no notice need be given to the signers of the bond when leave to sue is applied for. Richardson v. Oakman, 15 Gray, 57. Richardson v. Hazelton, 101 Mass. 108. Fuller v. Cushman, 170 Mass. 286, 288. Hellier v. Loring, 242 Mass. 251, 253. A decree authorizing an action on the bond adjudicates nothing except that, the petitioner may sue on it. Such a decree decides nothing with respect to the merits of the case. Richardson v. Oakman, 15 Gray, 57. Fuller v. Cushman, 170 Mass. 286, 288. McIntire v. Linehan, 178 Mass. 263, 267. The respondent, therefore, is not aggrieved.

Our attention has been directed to two decisions which it is contended support the right of appeal in this case. Conant v. Kendall, 21 Pick. 36, 40. Hill v. Arnold, 199 Mass. 109. Neither of these decisions decides that question.

Since, for the reasons above stated, the case is not properly here, the appeal should be dismissed.

So ordered.

Free access — add to your briefcase to read the full text and ask questions with AI

Spalding, J.

The petitioner was authorized by a decree of the Probate Court to bring an action on the bond of the administrator of the estate of Winifred P. Boylan. The surety on the bond appealed. The petitioner has moved that the appeal be dismissed, contending that the decree is not appealable. The motion must be allowed.

With respect to the subject of appeal there is a distinction between a decree granting leave to sue on the bond of an administrator and one denying it. In the case of a refusal an appeal lies. Robbins v. Hayward, 16 Mass. 524, 528. Jones, appellant, 8 Pick. 121. Fay v. Rogers, 2 Gray, 175, 177. Richardson v. Oakman, 15 Gray, 57. Putney v. Fletcher, 140 Mass. 596. Such a decree being in effect final, the petitioner is aggrieved.

However, where leave to sue on the bond is granted that action is not appealable. Jones, appellant, 8 Pick. 121. [19]*19Fay v. Rogers, 2 Gray, 175. Richardson v. Oakman, 15 Gray, 57. Bennett v. Woodman, 116 Mass. 518. Choate v. Jacobs, 136 Mass. 297, 298. Putney v. Fletcher, 140 Mass. 596. In the Bennett case it was said at page 519: “The administratrix has no such interest in the matter of granting leave to bring an action upon her bond, as to give her a right to resist the application therefor, or to be heard upon it. . . . We think it must follow from the same consideration, that, when a suit has been brought upon the bond, the administratrix and her sureties are not entitled to contest the validity of the order of the Probate Court authorizing it.” It has been held that no notice need be given to the signers of the bond when leave to sue is applied for. Richardson v. Oakman, 15 Gray, 57. Richardson v. Hazelton, 101 Mass. 108. Fuller v. Cushman, 170 Mass. 286, 288. Hellier v. Loring, 242 Mass. 251, 253. A decree authorizing an action on the bond adjudicates nothing except that, the petitioner may sue on it. Such a decree decides nothing with respect to the merits of the case. Richardson v. Oakman, 15 Gray, 57. Fuller v. Cushman, 170 Mass. 286, 288. McIntire v. Linehan, 178 Mass. 263, 267. The respondent, therefore, is not aggrieved.

Our attention has been directed to two decisions which it is contended support the right of appeal in this case. Conant v. Kendall, 21 Pick. 36, 40. Hill v. Arnold, 199 Mass. 109. Neither of these decisions decides that question.

Since, for the reasons above stated, the case is not properly here, the appeal should be dismissed.

So ordered.

Cite This Page — Counsel Stack

Bluebook (online)

56 N.E.2d 592, 317 Mass. 18, 1944 Mass. LEXIS 776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-finance-corp-v-maryland-casualty-co-mass-1944.

Opinion

Related

Cite This Page — Counsel Stack