Drinkwater v. Frank

• Decision Date: 27 November 1912
• Citation: 213 Mass. 194,99 N.E. 968
• Parties: DRINKWATER v. FRANK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 194

99 N.E. 968

DRINKWATER v. FRANK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

November 27, 1912

COUNSEL

J. H. Blanchard, of Boston, for plaintiff.

S. L Bailen, of Boston, for defendants.

OPINION

RUGG C.J.

This is a petition to establish the truth of exceptions. The defendants seasonably filed exceptions, and on the 17th day of February, 1912, the plaintiff moved to dismiss them, alleging that the defendants had 'failed for an unreasonable length of time to present * * * said exceptions for allowance.' After a hearing, the judge of the superior court found that 'upon the circumstances disclosed at the hearing of the motion, the case comes within the spirit and letter of the statute of 1911, chapter 212 section 2. The exceptions were filed November 1, 1911. They were not presented to the court for allowance within such time as the court finds reasonable under such circumstances. * * * No good reason appears why appellants should have further time to draft an amended bill of exceptions.' Thereupon the exceptions were dismissed, and judgment entered upon the verdict as if no exceptions had been alleged and filed.

St 1911, c. 212, makes important changes in the practice respecting the allowance of exceptions. It provides that, after exceptions have been filed, either party may present them to the presiding judge for examination and hearing as to conformability to truth. If the excepting party does not so present them within such time as the court deems reasonable, the court may order them dismissed and enter judgment as if no exceptions had been filed, but such action cannot be taken sooner than three months after the date of their filing. The determination by the presiding judge of the question whether there has been unreasonable delay on the part of the excepting party in presenting and pressing the exceptions for allowance is final. His decision is not open to review. There is nothing inconsistent with this result in rule 64 of the superior court, adopted January 6, 1912, to regulate the practice under St. 1911, c. 212. The effect of that rule is that after exceptions have remained for 3 months without action they will be dismissed as matter of course at the end of 30 days more, unless special order to the contrary is made. It provides for an automatic dismissal of exceptions in cases falling within its terms. It is a determination that commonly 30 days in addition...