Cobb v. Rice

Gray, C. J.

Questions of law, arising on the common law side of this court when held by one justice, or in the Superior *12 Court, and reserved by bill of exceptions or by report of the judge, as well as those presented by appeal from a judgment of the Superior Court, are required by statute to be entered by the party in the law docket of this court, in order to give the full court jurisdiction thereof; and such entry does not transfer the case, but only the question of law to be determined. Gen. Sts. e. 112, §§ 10, 11; e. 114, § 14; e. 115, § 12. St. 1864, e. 111. If the appellant or excepting party does not seasonably so enter the question in this court, provision is made for entering it afterwards upon his petition, or for affirming the judgment below on complaint of the adverse party. Gen. Sts. c. 112, §§16, 17.

But when an appeal is claimed from a final decree of a single justice of this court sitting in equity, and entered on the docket of the court for the county in which the cause is pending, it, is declared that “such appeal shall be thereupon pending before the full court; ” it is to be entered upon a separate docket from that of actions at law; and the full court, if the evidence is duly reported, may consider the - whole cause, and, in special cases, allow further evidence to be taken, and may, in case of reversing the final decree, remand the cause to a single justice for further proceedings.1 Gen. Sts. o. 113, §§ 8-10, 14, 15, 21. When a party, by accident or mistake, “ omits to claim an appeal ” from a final decree within thirty days, he may, by-petition to the full court, obtain leave to appeal. § 13. But no provision is made, either for a petition of the appellant, or for a complaint of the adverse party, in case of omission to enter the appeal in the full court; because, as soon as the appeal is claimed and entered before a single justice, the cause is at once pending before the full court, and may be dealt with on motion.

Immediately upon the entry of the claim of an appeal from a final decree of a single justice in equity, it is therefore the duty of the clerk to enter the cause upon the equity docket of the full court; and if the appellant neglects to order the proper copies to be prepared for the hearing of the cause before the full court, the remedy of the adverse party is not to be sought by complaint or petition to affirm the decree, for non-entry of the appeal; but by motion to have the appeal dismissed, and the decree affirmed, for failure duly to prosecute the appeal.

*13 It appearing, by the uncontroverted statements of counsel, that the appellants intend to prosecute their appeal, and that it is by mistake that the proper copies have not been prepared, it is ordered that the petition of the appellees be dismissed, and that, upon copies being furnished to the judges, the Appeal stand for hearing.