Olsson v. Waite

Bkaucher, J.

(dissenting). In my view nothing is properly before us, and the appeals should be dismissed. On January 10, 1973, Olsson filed a written waiver of his appeal from the decree of October 17, 1972, and that appeal could not be reinstated in October, 1973, by an agreement of the parties or an order of the trial court. G. L. c. 215, §§ 15, 29 (repealed by St. 1975, c. 400, § 61 and § 65, respectively, effective July 1, 1975). Cf. G. L. c. 231, § 134 (repealed by St. 1973, c. 1114, § 205, effective July 1, 1974); Mass. R. A. P. 14 (b), 29 (a), 365 Mass. 859, 877 (1974); Tolman v. Tolman, 224 Mass. 501, 504 (1916); Boston v. Santosuosso, 308 Mass. 202, 209 (1941). The decree of December 1, 1972, purported to revoke the prior decree; the judge said, “I will revoke the decree and put the case down for an early hearing and get it over with.” Thus the second decree was interlocutory, and no appeal except one from a final decree can come presently to this court. LaRaia v. LaRaia, 329 Mass. 92, 93 (1952). Slater v. Munroe, 313 Mass. 538, 540 (1943). See Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 467-471 (1975); Giacobbe v. First Coolidge Corp., 367 Mass. 309, 312-314 (1975). The decree of December 18, 1972, did not change the posture of the case, and thus was also interlocutory.

I sympathize with the court’s desire not to delay further the administration of the estate of a decedent who died more than five years ago. Hence I should not object to an expression of opinion on the questions presented, as in Slater v. Munroe, supra, so far as that can be done with assurance. I agree with the court’s conclusion that the decree of December 1 cannot rest on the implied findings of the judge, since he relied on two affidavits filed by Olsson, and Waite had not been given copies of those affidavits. But I do not think it is sound procedure for *535this court to make its own findings on the basis of a transcript of conflicting testimony, disregarding the affidavits and resolving questions of credibility. In my view a new hearing is required, as the judge intended.

As for the question whether the judge had power on December 1 to vacate the October 17 decree, I would reserve judgment until we have before us proper findings of fact. Olsson’s appeal from the October 17 decree was pending December 1, and the motion to vacate might have been denied on that ground. William v. Howard, 330 Mass. 323, 324-325 (1953). But the judge said that Olsson should dismiss his appeal, and Olsson stated in open court that he would do so and later filed a written waiver. The effect of these events on the rules of such cases as Zeitlin v. Zeitlin, 202 Mass. 205, 207 (1909), and Sullivan v. Sullivan, 266 Mass. 228, 229-230 (1929), presents a novel question. See O’Brien v. Dwight, 363 Mass. 256, 285-289 (1973); Waters v. Stickney, 12 Allen 1, 15 (1866). The answer to that question may depend on the facts found, and I am not prepared to express an opinion on it in a case in which we have no jurisdiction.