Browne v. Hale

Gray, C. J.

The motion and petition of the defendants are founded on a misunderstanding of the scope and effect of the statutes regulating the allowance and proof of exceptions.

It is the duty of the excepting party to file his exceptions with the clerk, to give notice thereof to the adverse party, and to present them to the judge, at the same term and within three days after verdict, unless the time is extended by the judge; and it is the right of the adverse party to have an opportunity to be heard concerning the allowance of the exceptions so presented. Gen. Sts. o. 115, § 7. The time of filing the exceptions must appear of record. Doherty v. Lincoln, 114 Mass. 362 . But the notice to the adverse party, or his attendance before the judge at the hearing upon the allowance of the exceptions, does not appear upon the record, and is to be presumed, in the absence of proof to the contrary, the ordinary means of which is the certificate of the judge. Conway v. Callahan, 121 Mass. 165 . The restoring of the exceptions, when allowed, to the files, with a certificate of the reasons rendering necessary any unusual delay in so doing, is a duty resting on the judge, over the performance of which the party has no control; and the want of an exact compliance on the part of the judge with the directions of the statute in this respect does not deprive the excepting party of the right to prosecute exceptions which the judge has allowed and restored to the files. Gen. Sts. c. 115, § 8. Borrowscale v. Bosworth, 98 Mass. 34, 37, 39 . Hale v. Rice, 124 Mass. 292, 297 .

In the present case, it is admitted that the plaintiff filed his exceptions, and presented them to the judge, within three days after the verdict; judgment could not properly be entered until the exceptions were disposed of; and the docket shows that the *162 exceptions allowed, were restored to the files at a subsequent term and before the entry of final judgment. The case, like all others in which there had been no final judgment, stood continued from term to term under the general order; no action having been taken in vacation, the fact that the .case had not been continued nisi was immaterial; and neither the lapse of time, nor the imperfection of the certificate, affords any ground for dismissing the exceptions. The question whether there appears to have been error in the rulings at the trial may more properly be determined upon the argument of the exceptions. The suggestions that material evidence introduced at the trial was omitted in the exceptions allowed, and that the defendants were not duly heard upon the allowance of the exceptions, are unsupported by the record or by other evidence. The exceptions were entered in this court within four days after they had been allowed and restored to the files of the Superior Court. The motion to dismiss the exceptions must therefore be overruled. Priest v. Groton, 103 Mass. 530 .

By the Gen. Sts. c. 115, § 11, “If the justice disallows or fails to sign and return the exceptions, or alters any statement therein, and either party is aggrieved, the truth of the exceptions presented may be established before the Supreme Judicial Court upon petition setting forth the grievance, and thereupon, the truth thereof being established, the exceptions shall be heard, and the- same proceedings had as if they had been duly signed and brought up to said court with the petition. The Supreme Judicial Court shall make and promulgate rules for settling the truth of exceptions alleged and not allowed.”

The object of this section is to secure to a party aggrieved by a ruling at the trial additional means for obtaining a revision thereof. It is only a party against whom a ruling has been made, who can allege or present exceptions to the ruling, or who can be said to be aggrieved, either by the ruling itself, or by disallowing, failing to sign and restore to the files, or altering his exceptions to it. Each party, indeed, has the right to except to rulings made against him at the trial and material to the verdict or judgment; and it sometimes happens that the rulings are unfavorable in part to the one party, and in part to the other, and are even, in practice, included in one bill of excep* *163 lions, by the disallowance or non-allowance or alteration of which both parties may be aggrieved. But when one party alone is aggrieved by the rulings at the trial, and alleges and presents exceptions thereto, the adverse party has no right to allege or present exceptions, and any draft of a bill of exceptions submitted by him to the judge, at the hearing on the allowance of the exceptions presented by the party aggrieved, is only by way of suggesting amendments of those exceptions, and is not itself a bill of exceptions, which the judge can be required to allow, or the truth of which can be established by petition to this court.

S. W. Harmon & J. M. Browne, for the plaintiff. J. T. Joslin & B. F. Briggs, for the defendants.

The petition of the defendants to establish the truth of statements contained, not in any exceptions alleged and presented by themselves, but in their draft of the exceptions of the plaintiff, must therefore be dismissed, and the Exceptions allowed stand for argument.

The case was afterwards argued on the exceptions.

Lord, J. It appears from the bill of exceptions that a notice proper in form had been issued by the proper magistrate before the notice upon which the debtor was discharged was issued. In order to entitle the debtor to a new notice within seven days from the issuing of the previous one, it is incumbent upon him to show affirmatively that there was defect either in form or in service of the previous notice. Gen. Sts. c. 124, § 14. Safford v. Clark, 105 Mass. 389 . Millett v. Lemon, 113 Mass. 355 . This he has failed to do. The second notice within seven days from the first was therefore inoperative, and the entry must be Exceptions sustained.