Lucille E. Moran vs. District Court of Central Middlesex, 347 Mass. 241

Wilkins, C.J. This petition for a writ of error is reported without decision by a single justice. The petitioner, pursuant to proceedings purportedly under G. L. c. 123, §§ 50-54, 79, was a patient at the Veterans Administration Hospital in Bedford from November 7, 1959, to March 17, 1960. Although no longer a patient or subject to confinement or restraint, she nevertheless contends that she is entitled to an adjudication of error in the commitment proceedings. In his report the single justice states that he has doubt whether the petitioner is entitled to relief by writ of error.

A writ of error lies only to review proceedings held according to the course of the common law. Blankenburg v. Commonwealth, 260 Mass. 369, 371. Giarruso v. Payson, 272 Mass. 417, 419. O’Leary, petitioner, 325 Mass. 179, 184. There also must be a judgment or an award in the nature of a judgment. Drowne v. Stimpson, 2 Mass. 441, 445. See Cooke, petitioner, 15 Pick. 234; Commonwealth v. Marsino, 252 Mass. 224, 228, dismissed sub nom. Marsino v. Commonwealth, 271 U. S. 642; G. L. (Ter. Ed.) c. 250, § 3. An order of commitment under G. L. c. 123, § 51, as amended, is not a judgment.

This is clear from two decisions dealing with predecessor statutes. In Leggate v. Clark, 111 Mass. 308, 310, it was said that St. 1862, c. 223, § 3, “ does not pretend to declare the person committed to the hospital to be incapable of transacting business. It does not take from him the care and management of his estate. It affords a justification for the restraint of his person, but is not designed to fix his status.” In Dowdell, petitioner, 169 Mass. 387, where there was a commitment under Pub.

Sts. c. 87, § 12, as amended, it was said (p. 388): “The order of commitment settles nothing finally or conclusively against the person committed. It does not take from him the care or control of his property. It is not equivalent to the appointment of a guardian over him. Leggate v. Clark, 111 Mass. 308, 310. He is entitled as a matter of right to institute judicial proceedings under the statutes, to determine the necessity and propriety of his confinement.” See Mitchell v. Mitchell, 312 Mass. 165, 168.

We conclude that the proceedings leading to the order of commitment were not in the course of the common law, and that writ of error is not an appropriate method of review. Petition dismissed.