Noyes v. Sherburne

Massachusetts Supreme Judicial Court

Noyes v. Sherburne

117 Mass. 279, 1875 Mass. LEXIS 214

CourtMassachusetts Supreme Judicial Court

DecidedMarch 3, 1875

StatusPublished

Cited by2 cases

This text of 117 Mass. 279 (Noyes v. Sherburne) 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

Noyes v. Sherburne, 117 Mass. 279, 1875 Mass. LEXIS 214 (Mass. 1875).

Pincite

Opinion

Gray, C. J.

An appeal from the Municipal Court of Boston is to be entered and disposed of in all respects like an appeal from a justice of the peace. Gen. Sts. e. 116, § 32. Sts. 1862, c. 217, § 1; 1866, e. 279, § 12. If an appellant from the judgment of a justice of the peace fails to enter his appeal, the Superior Court, on complaint of the adverse party, may affirm the judgment. Gen. Sts. c. 120, § 27. If, by reason of mistake or accident, an appeal to the Superior Court is not duly entered therein, or a complaint founded on an omission to enter an appeal has not been entered by the appellee, the court, upon petition filed within one year after the appeal or complaint should have been entered, may allow said appeal or complaint to be entered, and proceed thereon as if it had been entered at the proper term —just as in the case of questions arising upon appeal from the Superior Court to this court. Gen. Sts. e. 114, §15; o. 112, .§ 17.

It thus appears that a complaint for the affirmation of a judgment for omission to enter an appeal cannot be presented as of right after the first term, but may, in case of accident or mistake, be allowed by the appellate court to be entered at any term within a year afterwards. The appellant, being in default by not having entered his appeal, is not entitled to notice except at the discretion of the court. In strictness, and by the terms of the statute, the petition to enter the complaint should be distinct from the complaint itself. But this, being mere matter of form, not affecting the rights of either party, has been often disregarded in practice.

[281]*281The judgment of the Superior Court at the second term, affirming the judgment appealed from, upon the petition and complaint of the appellee, is conclusive, and is not erroneous for want of a separate petition for leave to enter the complaint, or of notice to the appellant, or of a recital that the omission to enter the complaint at the first term was by accident or mistake.

Judgment affirmed.

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Gray, C. J.

An appeal from the Municipal Court of Boston is to be entered and disposed of in all respects like an appeal from a justice of the peace. Gen. Sts. e. 116, § 32. Sts. 1862, c. 217, § 1; 1866, e. 279, § 12. If an appellant from the judgment of a justice of the peace fails to enter his appeal, the Superior Court, on complaint of the adverse party, may affirm the judgment. Gen. Sts. c. 120, § 27. If, by reason of mistake or accident, an appeal to the Superior Court is not duly entered therein, or a complaint founded on an omission to enter an appeal has not been entered by the appellee, the court, upon petition filed within one year after the appeal or complaint should have been entered, may allow said appeal or complaint to be entered, and proceed thereon as if it had been entered at the proper term —just as in the case of questions arising upon appeal from the Superior Court to this court. Gen. Sts. e. 114, §15; o. 112, .§ 17.

It thus appears that a complaint for the affirmation of a judgment for omission to enter an appeal cannot be presented as of right after the first term, but may, in case of accident or mistake, be allowed by the appellate court to be entered at any term within a year afterwards. The appellant, being in default by not having entered his appeal, is not entitled to notice except at the discretion of the court. In strictness, and by the terms of the statute, the petition to enter the complaint should be distinct from the complaint itself. But this, being mere matter of form, not affecting the rights of either party, has been often disregarded in practice.

[281]*281The judgment of the Superior Court at the second term, affirming the judgment appealed from, upon the petition and complaint of the appellee, is conclusive, and is not erroneous for want of a separate petition for leave to enter the complaint, or of notice to the appellant, or of a recital that the omission to enter the complaint at the first term was by accident or mistake.

Judgment affirmed.

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Bluebook (online)

117 Mass. 279, 1875 Mass. LEXIS 214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noyes-v-sherburne-mass-1875.

Opinion

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