Barnes Et Al. v. Barnes Et Al‪.‬

RUGG, Chief Justice. The plaintiffs in this suit in equity seek a reconveyance of real estate formerly owned by Katherine
F. Barnes, one of the plaintiffs. It was heard by the trial Judge on November 25, 1933, and a report of facts, rulings, and
an order for a decree dismissing the bill were entered on February 6, 1934. These are not printed in the record and are not
before us. The bill and answer are not before us. The plaintiff Katherine F. Barnes died on March 9, 1934. The matter came
before the trial Judge on several occasions between March 9, 1934, and September 7, 1934, but no suggestion of the death of
Katherine F. Barnes was filed, although there was mention of her decease on one occasion. On September 7, 1934, a decree was
entered dismissing the bill in accordance with the order of February 6, 1934. On September 11, 1934, the counsel of record
at that time for the plaintiffs filed a claim of appeal from the final decree entered on September 7, 1934, but took no steps
to perfect the appeal; that claim of appeal therefore failed. On October 25, 1934, present counsel of record for the plaintiffs
entered their appearance and filed a suggestion of death of the plaintiff Katherine F. Barnes, together with a motion that
William H. Eames, as administrator of her estate, be permitted to prosecute the case; and also filed a petition to vacate
the final decree. On December 22, 1934, the motion of Eames as administrator was allowed, but a motion of the defendants filed
on November 5, 1934, to dismiss the plaintiffs' appeal was not acted upon. On December 22, 1934, the trial Judge entered an
order that the final decree of September 7, 1934, take effect as of March 1, 1934. On January 10, 1935, counsel for the plaintiffs,
apparently representing both the surviving plaintiff and the administrator of the deceased plaintiff, offered for filing an
appeal from the final decree, which the clerk refused to accept and which the trial Judge refused to order him to accept.
The single question reported for determination is whether on these facts the appeal from the final decree sought to be entered
on January 10, 1935, should have been accepted for filing on that day. The form of the appeal was that the plaintiffs 'appeal from the final decree of September 7, 1934 'entered as of March 1,
1934.' The docket entry under date of January 10, 1935, is 'Plaintiffs' appeal from order entered Dec. 22, 1934.' It is not
necessary to analyze nicely the differences which may exist between these forms of appeal. In any event, whatever rights of
appeal were open from the action of the court were seasonably claimed.