JOHANNA E. FREEMAN vs. PERCY N. FREEMAN & another.

MARGARET T. TWOMEY, executrix, vs. CITY OF WORCESTER.

320 Mass. 758

November 2, 1946

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, Section 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, Section 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, Section 96.