Richards v. Appley

• Decision Date: 03 March 1905
• Citation: 187 Mass. 521,73 N.E. 555
• Parties: RICHARDS v. APPLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 521

73 N.E. 555

RICHARDS v. APPLEY.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1905

COUNSEL

Hamilton & Eaton and Albin L. Richards, for plaintiff.

John J Higgins, for defendant.

OPINION

KNOWLTON C.J.

It appears in the record that the plaintiff objected to the allowing of this bill of exceptions on the ground that no exception was taken. The certificate of the judge is 'Exceptions allowed, so far as I have a right to allow them.' This presents the question whether an exception was taken in such a form as to entitle the defendant to an allowance of it. The only question of law which the defendant seeks to present is whether the evidence warranted the finding of the presiding justice. There was no request for a ruling on this subject, nor any exception alleged or taken previously to the filing of the bill, 20 days after the filing of the findings and memorandum of opinion by the judge, and at least 19 days after the defendant received notice of these findings. The case is covered by the decision in Keohane, Petitioner, 179 Mass. 69, 60 N.E. 406, in which as in this case, the trial was before a judge without a jury, and the defendant, after a decision, sought to raise questions of law involved in the findings. In the opinion the court says: 'The judge therefore ruled by implication that the evidence warranted a finding of substantial damages. It may be urged that the correctness of this implied ruling is open. But, in our opinion, if a party wishes to save a question of law upon the evidence, he must do so before the trial is over, and cannot raise it for the first time by what may be an afterthought, although it was not so in this case. If the judge should leave the case to a jury upon a wrong ruling, it would be too late to except after a verdict had been returned. The rule is the same when the finding is by a judge. If there has been no preliminary understanding or arrangement for saving a party's rights, it is too late to except to a finding as unwarranted by the evidence, after it has been made.'

There is another reason why this exception should not be considered. If a finding expressly includes a ruling of law first made when the decision is filed, a considerable time after the end of the trial, the statute requires that an exception shall be alleged if the party desires a revision of the ruling. Rev. Laws, c. 170, § 106. This section also requires that it shall be reduced to writing and filed with the clerk within 20 days after the verdict is rendered, or if the case is tried without a jury, within 20 days after the notice of the decision is received. This notice must be given by the clerk. Rev. Laws, c. 165, § 19. This statute has always been interpreted as meaning that, to save an exception, it must be alleged promptly. Rule 48 of the superior court is as follows: 'No exception shall be allowed by the presiding justice unless the same...