Twomey v. City of Worcester

Massachusetts Supreme Judicial Court

Twomey v. City of Worcester

70 N.E.2d 292, 320 Mass. 758, 1946 Mass. LEXIS 772

CourtMassachusetts Supreme Judicial Court

DecidedNovember 2, 1946

StatusPublished

Cited by1 cases

This text of 70 N.E.2d 292 (Twomey v. City of Worcester) 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

Twomey v. City of Worcester, 70 N.E.2d 292, 320 Mass. 758, 1946 Mass. LEXIS 772 (Mass. 1946).

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Opinion

Appeals dismissed. The petitioner appeals or attempts to appeal from an order of a judge of the Superior Court dismissing her substitute petition “for Bill of Review.” Inasmuch as it appears by a fair interpretation of the petition itself that the original proceeding of which review is sought was an action at law, and as a bill of review is available only to review suits in equity, we incline to construe the petition liberally as intended to seek a writ of review under G. L. (Ter. Ed.) c. 250, § 22. Even so, the case is not properly here, since the order of the Superior Court does not fall within any of the classes of orders which by virtue of G. L. (Ter. Ed.) c. 231, § 96, are appealable in proceedings at law. There is nothing to show that the order dismissing the petition was “founded upon matter of law apparent on the record.” Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 135. Sheehan Construction Co. v. Dudley, 299 Mass. 48, 49. So far as appears the order may have been founded upon disbelief of facts relied upon by the petitioner, or it may have been entered as matter of discretion. Browne v. Fairhall, 218 Mass. 495, 497. Harrington v. Anderson, 316 Mass. 187, 191. We may add that at best the petition alleged only errors of fact or law in the trial of the original action as to which the proper remedy, if any, would have been by exceptions, or possibly by motion for new trial. If all the allegations were accepted as true they would disclose no occasion to resort to the peculiar remedy of a writ of review. Stillman v. Donovan, 170 Mass. 360. Silverstein v. Daniel Russell Boiler Works, Inc. 268 Mass. 424. Another appeal from an order revoking the designation of a stenographer to take the evidence on the petition for review is also improperly here, since the order appealed from was not “decisive of the case.” G. L. (Ter. Ed.) c. 231, § 96.

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Appeals dismissed. The petitioner appeals or attempts to appeal from an order of a judge of the Superior Court dismissing her substitute petition “for Bill of Review.” Inasmuch as it appears by a fair interpretation of the petition itself that the original proceeding of which review is sought was an action at law, and as a bill of review is available only to review suits in equity, we incline to construe the petition liberally as intended to seek a writ of review under G. L. (Ter. Ed.) c. 250, § 22. Even so, the case is not properly here, since the order of the Superior Court does not fall within any of the classes of orders which by virtue of G. L. (Ter. Ed.) c. 231, § 96, are appealable in proceedings at law. There is nothing to show that the order dismissing the petition was “founded upon matter of law apparent on the record.” Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 135. Sheehan Construction Co. v. Dudley, 299 Mass. 48, 49. So far as appears the order may have been founded upon disbelief of facts relied upon by the petitioner, or it may have been entered as matter of discretion. Browne v. Fairhall, 218 Mass. 495, 497. Harrington v. Anderson, 316 Mass. 187, 191. We may add that at best the petition alleged only errors of fact or law in the trial of the original action as to which the proper remedy, if any, would have been by exceptions, or possibly by motion for new trial. If all the allegations were accepted as true they would disclose no occasion to resort to the peculiar remedy of a writ of review. Stillman v. Donovan, 170 Mass. 360. Silverstein v. Daniel Russell Boiler Works, Inc. 268 Mass. 424. Another appeal from an order revoking the designation of a stenographer to take the evidence on the petition for review is also improperly here, since the order appealed from was not “decisive of the case.” G. L. (Ter. Ed.) c. 231, § 96.

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Bluebook (online)

70 N.E.2d 292, 320 Mass. 758, 1946 Mass. LEXIS 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/twomey-v-city-of-worcester-mass-1946.

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