Rowe v. Bragg

Massachusetts Supreme Judicial Court

Rowe v. Bragg

15 N.E.2d 230, 300 Mass. 298, 1938 Mass. LEXIS 918

CourtMassachusetts Supreme Judicial Court

DecidedMay 25, 1938

StatusPublished

Cited by6 cases

This text of 15 N.E.2d 230 (Rowe v. Bragg) 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

Rowe v. Bragg, 15 N.E.2d 230, 300 Mass. 298, 1938 Mass. LEXIS 918 (Mass. 1938).

Pincite

Opinion

Dolan, J.

This is an appeal from an interlocutory order, entered in a suit in equity in the Superior Court, sustaining the defendant Bragg’s demurrer to the bill. The order was made and signed by the judge in the following form: “Nov. 9, 1937. Demurrer sustained and Bill ordered dismissed without costs and without prejudice to plaintiff bringing an action at law.” The docket entry of the same date sets out the order in full. On November 12, 1937, the plaintiff appealed “from the order sustaining the Defendant’s Demurrer.” An examination of the docket entries discloses that no final decree has been entered dismissing the bill as ordered in the interlocutory order and that the only appeal is that of the plaintiff which appears in the record from the “order” of the judge sustaining the demurrer and directing that the bill be dismissed.

It is settled that suits in equity can be brought before this court as of right only by appeal from a final decree, see Knox v. Springfield, 273 Mass. 109, 110, and cases cited; Check v. Kaplan, 280 Mass. 170, 175, and that “The only way in which an appeal from an interlocutory decree can be brought to this court before final decree is by report of the judge entering the decree. G. L. c. 214, §§ 26, 30.” Knox v. Springfield, 273 Mass. 109, 110. See also Check v. Kaplan, 280 Mass. 170, 175; Geragosian v. Union Realty Co. 289 Mass. 104, 110.

The interlocutory decree “Demurrer sustained and Bill ordered dismissed . . .” and its entry in full form on the docket constitute not a final decree, see Merrill v. Beckwith, 168 Mass. 72, 75, 76; Tyndale v. Stanwood, 187 Mass. 531, 532; Crossman v. Griggs, 188 Mass. 156, but rather an order for final decree from which no appeal lies. See Graustein v. Dolan, 282 Mass. 579, 583; Fusaro v. Murray, ante, 229, and cases cited. In the case at bar, as no final decree has been entered, and the judge has not reported [300]*300his action in sustaining the demurrer (G. L. [Ter. Ed.] c. 214, §§ 26, 30), the plaintiff’s appeal is not properly before us.

Appeal dismissed.

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

Dolan, J.

This is an appeal from an interlocutory order, entered in a suit in equity in the Superior Court, sustaining the defendant Bragg’s demurrer to the bill. The order was made and signed by the judge in the following form: “Nov. 9, 1937. Demurrer sustained and Bill ordered dismissed without costs and without prejudice to plaintiff bringing an action at law.” The docket entry of the same date sets out the order in full. On November 12, 1937, the plaintiff appealed “from the order sustaining the Defendant’s Demurrer.” An examination of the docket entries discloses that no final decree has been entered dismissing the bill as ordered in the interlocutory order and that the only appeal is that of the plaintiff which appears in the record from the “order” of the judge sustaining the demurrer and directing that the bill be dismissed.

It is settled that suits in equity can be brought before this court as of right only by appeal from a final decree, see Knox v. Springfield, 273 Mass. 109, 110, and cases cited; Check v. Kaplan, 280 Mass. 170, 175, and that “The only way in which an appeal from an interlocutory decree can be brought to this court before final decree is by report of the judge entering the decree. G. L. c. 214, §§ 26, 30.” Knox v. Springfield, 273 Mass. 109, 110. See also Check v. Kaplan, 280 Mass. 170, 175; Geragosian v. Union Realty Co. 289 Mass. 104, 110.

The interlocutory decree “Demurrer sustained and Bill ordered dismissed . . .” and its entry in full form on the docket constitute not a final decree, see Merrill v. Beckwith, 168 Mass. 72, 75, 76; Tyndale v. Stanwood, 187 Mass. 531, 532; Crossman v. Griggs, 188 Mass. 156, but rather an order for final decree from which no appeal lies. See Graustein v. Dolan, 282 Mass. 579, 583; Fusaro v. Murray, ante, 229, and cases cited. In the case at bar, as no final decree has been entered, and the judge has not reported [300]*300his action in sustaining the demurrer (G. L. [Ter. Ed.] c. 214, §§ 26, 30), the plaintiff’s appeal is not properly before us.

Appeal dismissed.

Cite This Page — Counsel Stack

Bluebook (online)

15 N.E.2d 230, 300 Mass. 298, 1938 Mass. LEXIS 918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rowe-v-bragg-mass-1938.

Opinion

Related

Cite This Page — Counsel Stack