This proceeding was brought in the Second District Court of Eastern Middlesex pursuant to G.L.c. 117, §§ 7-12,
The narrow question presented for our decision is whether a proceeding under § 7 (see footnote 1, supra) is a "civil action" within the meaning of § 97 (see footnote 2, supra). If it is, the defendant is entitled to a trial de novo on the merits in the Superior Court. If a proceeding under § 7 is not such a "civil action," no new trial is available under § 97.
The procedure under § 7 and related sections for compelling support of an indigent person by his kindred is statutory. See South Reading v. Hutchinson, 10 Allen, 68, in which Bigelow, C.J., said that the proceeding was "not a personal action" but "a proceeding of a peculiar nature, authorized by Gen. Sts. c. 70, § 5" (a predecessor of the present § 7). There is no occasion for tracing the earlier history of the section which in part goes back to St. 1692-3, c. 28, § 9, but, in modern times, the proceeding seems to have been intended to be exclusively within the jurisdiction
Revised Laws (1902) c. 81, § 11 (confirming a change of language made by St. 1898, c. 425, § 4), was a predecessor of § 7. Section 11 placed jurisdiction of proceedings thereunder in a "justice of the superior court sitting in equity." See note, Report of the Commissioners for Consolidating and Arranging the Public Statutes, vol. 1, pp. 676-677. The section remained unchanged in this respect after the revision, and through the recodification of 1921 and the changes effected in the section by St. 1928, c. 155, § 16. By St. 1950, c. 485, § 1, the section was changed to give such jurisdiction to a "justice of the superior court or a judge or special judge of a probate court sitting in equity." By St. 1956, c. 156, such jurisdiction was transferred to the District Court without any indication, either in the statute itself or in its legislative history,
We are confirmed in this view by the circumstance that an equitable proceeding, like that under § 7, does not readily fit within the term "civil action." The term "civil action," which is used in § 97, ordinarily is applied under our State practice to actions at law. It further may be noted that no
It is not necessary in this proceeding to determine two questions somewhat argued in the briefs of the parties, viz. (1) whether questions of law arising in a proceeding under § 7 in the District Court may be reviewed by report to the Appellate Division (see G.L.c. 231, §§ 103 and 108, as amended), and (2) whether such questions of law may be dealt with by petition for a writ of certiorari. See G.L.c. 213, § 1A, as amended through St. 1941, c. 180; c. 249, § 4, as amended.
The italicized words were substituted by St. 1956, c. 156, for the comparable words found in § 7, as amended by St. 1950, c. 485, § 1, "A justice of the superior court or a judge or special judge of a probate court sitting in equity in the county where."
General Laws c. 117, § 9 (as amended through St. 1928, c. 155, § 18), reads: "The court may, upon application of any party interested, make further orders, alter such assessment and apportionment according to circumstances, and may order with and by whom of such kindred as desire it such person shall live and be relieved, and the length of time he shall live with different kindred, having regard to the comfort of the person as well as the convenience of the kindred."