317 Mass. 164 (1944), Graustein v. Boston & Maine R. R.

Citation317 Mass. 164, 57 N.E.2d 570
Party NameWILLIAM A. GRAUSTEIN v. BOSTON AND MAINE RAILROAD.
Case DateOctober 25, 1944
CourtSupreme Judicial Court of Massachusetts

Page 164

317 Mass. 164 (1944)

57 N.E.2d 570

WILLIAM A. GRAUSTEIN

v.

BOSTON AND MAINE RAILROAD.

Supreme Judicial Court of Massachusetts, Middlesex.

October 25, 1944

January 3, 1944.

Present: FIELD, C.

J., QUA, DOLAN, & RONAN, JJ.

Practice, Civil, Exceptions: saving of exception, general exception; New trial.

Upon the death of a judge of the Superior Court without having made a decision of a case heard by him without a jury, exceptions saved by one of the parties to rulings upon evidence at that hearing became a nullity and had no standing in this court even though included in a bill of exceptions allowed, with the other party's consent, by a judge who, under a stipulation by the parties, had heard the case upon a transcript of all the evidence presented to the first judge which included a statement of such exceptions, where the second judge was not asked to and did not make any ruling with reference to such evidence; G. L. (Ter.

Ed.) c. 231, Section 115, as amended, was not applicable.

No exception was saved by a document, filed by a party to an action heard by a judge without a jury, in which he stated, that he "within three days after his receipt . . . of notice of the findings and rulings of the court filed therein in absence of counsel, files this his claim of all of his exceptions."

CONTRACT OR TORT. Writ in the Superior Court dated April 17, 1937. The case previously was before this court when an order allowing a motion to dismiss was reversed, as reported in 304 Mass. 23 . The case then was heard by Sheehan, J., who died without having made a decision, and thereafter it was heard by Good, J., in the circumstances stated in the opinion.

W. A. Graustein, pro se. J. DeCourcy, for the defendant.

RONAN, J. The plaintiff, as assignee of the consignee, seeks to recover for loss of some of the machinery included in one shipment and for damage sustained by machinery contained in two other shipments. He alleges that the loss and damage were caused by the negligence of the defendant, the terminal carrier. After the case had been fully heard

Page 165

by a judge who died without making a decision, it was submitted to another judge in accordance with a stipulation of the parties for his determination upon a transcript of all the evidence together with the exhibits that had been introduced at the first hearing. This judge denied certain of the plaintiff's requests for rulings and found for the defendant. The plaintiff filed a paper which read as follows: "Now comes the plaintiff in the above entitled action, and, within three days after his receipt from...

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3 practice notes
  • 318 Mass. 664 (1945), Lane v. Epinard
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • November 5, 1945
    ...168. O'Connor v. Benson Coal Co. 301 Mass. 145 , 150-151. Geary v. Blomerth, 309 Mass. 91 , 96. Graustein v. Boston & Maine Railroad, 317 Mass. 164 , 167. Plaintiff's exceptions overruled. Defendant's exceptions overruled....
  • 339 Mass. 231 (1959), Campanella & Cardi Const. Co. v. Commonwealth
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • May 15, 1959
    ...Ins. Co. of Wisconsin v. Merrimac Mills Co., 325 Mass. 676, 678, note 2, 92 N.E.2d 256. Contrast Graustein v. Boston & Maine R. R., 317 Mass. 164, 166-168, 57 N.E.2d 570. We assume that the belated request for a ruling was received in connection with the motion for a new trial. So recei......
  • 319 Mass. 462 (1946), Commonwealth v. MacGregor
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • May 1, 1946
    ...court. If there is no existing exception, there is nothing that the bill can bring here." Graustein v. Boston & Maine Railroad, 317 Mass. 164 , 166. Riley v. Brusendorff, 226 Mass. 310 , 313. Edwards v. Cockburn, 264 Mass. 112 , 116. Hacking v. Coordinator of the Emergency Relief D......
3 cases
  • 318 Mass. 664 (1945), Lane v. Epinard
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • November 5, 1945
    ...168. O'Connor v. Benson Coal Co. 301 Mass. 145 , 150-151. Geary v. Blomerth, 309 Mass. 91 , 96. Graustein v. Boston & Maine Railroad, 317 Mass. 164 , 167. Plaintiff's exceptions overruled. Defendant's exceptions overruled....
  • 339 Mass. 231 (1959), Campanella & Cardi Const. Co. v. Commonwealth
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • May 15, 1959
    ...Ins. Co. of Wisconsin v. Merrimac Mills Co., 325 Mass. 676, 678, note 2, 92 N.E.2d 256. Contrast Graustein v. Boston & Maine R. R., 317 Mass. 164, 166-168, 57 N.E.2d 570. We assume that the belated request for a ruling was received in connection with the motion for a new trial. So recei......
  • 319 Mass. 462 (1946), Commonwealth v. MacGregor
    • United States
    • Massachusetts Supreme Judicial Court of Massachusetts
    • May 1, 1946
    ...court. If there is no existing exception, there is nothing that the bill can bring here." Graustein v. Boston & Maine Railroad, 317 Mass. 164 , 166. Riley v. Brusendorff, 226 Mass. 310 , 313. Edwards v. Cockburn, 264 Mass. 112 , 116. Hacking v. Coordinator of the Emergency Relief D......