Higgins v. First Nat. Stores, Inc.

• Decision Date: 31 March 1960
• Citation: 340 Mass. 618,165 N.E.2d 882
• Parties: Barbara S. HIGGINS v. FIRST NATIONAL STORES, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 882

165 N.E.2d 882

340 Mass. 618

Barbara S. HIGGINS v. FIRST NATIONAL STORES, INC.

Supreme Judicial Court of Massachusetts, Worcester.

Argued March 8, 1960.

Decided March 31, 1960.

Richard G. Crotty, Worcester, for defendant.

Frank Howard, Worcester (Paul V. Rutledge, Worcester, with him), for plaintiff.

Before WILKINS, C. J., and SPALDING, WILLIAMS, COUNIHAN and CUTTER, JJ.

WILKINS Chief Justice.

The plaintiff, who was hurt on the defendant's premises by the explosion of a bottle containing a carbonated beverage, brought this action of contract or tort and recovered verdicts on two counts for breach of warranty. The verdicts were returned on February 7, 1957. After extensions of time, the defendant's bill of exceptions was filed on May 7, 1957. On August 7, 1957, notices under Rule 74 of the Superior Court (1954) were mailed. The bill was not presented for allowance to the trial judge, and on January 21, 1958, the plaintiff filed a motion to dismiss. On June 17, 1958, in accordance with the trial judge's suggestions, the defendant filed a substitute bill of exceptions, which the trial judge allowed on the same day, making the notation, 'Believing that the defendant's * * * exceptions are based on real questions of law, that they are not frivolous or filed with the intention of causing delay, but made in good faith, I have reviewed the same and after hearing have allowed the same.' To this action the plaintiff filed a purported bill of exceptions.

There are two principal questions for decision: (1) whether the case had gone to judgment before the trial judge allowed the bill of exceptions; and (2) whether after judgment he had power to allow it.

We are of opinion that the case went to judgment on Monday, September 9, 1957. 'Judgment in civil actions and proceedings ripe for judgment shall be entered by the clerk, unless the party entitled thereto otherwise requests in writing or the court otherwise orders, at ten o'clock in the forenoon, on Monday of each week.' Rule 79 of the Superior Court (1954).

Pursuant to Rule 74 of the Superior Court (1954), ¹ the case became ripe for judgment on the preceding Friday, September 6. This date marked the expiration of thirty days from August 7, when the clerk sent the notices required by that rule since the bill of exceptions, filed May 7, had not been allowed or disallowed within three months after filing. This notice advised the parties and the trial judge that unless within thirty days, or any extension, an affidavit should be filed that the bill of exceptions had been presented to the trial judge for allowance, the bill of exceptions would be dismissed and judgment entered as though no exceptions had been filed. The mandate of the rule is that if, within thirty days, there should be no allowance or disallowance of the bill of exceptions, and no affidavit filed, the clerk shall dismiss the exceptions without further notice or order.

This is a provision for automatic action. See In re Frank, 213 Mass. 194, 195, 99 N.E. 968; Attwood v. New England Trust Co., 305 Mass. 472, 475, 26 N.E.2d 376; Petition of McGonigle, 317 Mass. 262, 263-264, 57 N.E.2d 926; Petition of Pine Grove Cemetery Corp., 334 Mass. 663, 666-667, 138 N.E.2d 202. The express language of Rule 74 that there is to be no further notice or order renders inapplicable cases dealing with orders 'in form anticipatory nisi.' See Cherry v. Cherry, 253 Mass. 172, 176, 148 N.E.2d 570. See also Plaisted v. Cooke, 181 Mass. 118, 119, 63 N.E. 132; Loonie v. Wilson, 233 Mass. 420, 423, 124 N.E. 272; O'Brien v. O'Brien, 238 Mass. 403, 407, 131 N.E. 177. It is of no consequence that the clerk failed to comply with the rule. See Sullivan v. Jordan, 310 Mass. 12, 15, 36 N.E.2d 387, and cases cited.

Consideration of the question as to the effect of the case going to judgment leads to an examination of that part of G.L. c. 231, § 113, which was inserted by St.1945, c. 328, and comprises two sentences which read: ' The presiding justice may, if, in his opinion, a bill of exceptions is filed in good faith, and justice so requires, allow such bill of exceptions although the excepting party or his attorney failed, through inadvertence, to comply with all of the provisions of this section. If, through inadvertence, a party who has duly claimed exceptions failed to file a bill of exceptions within said twenty days or within such further time as may have been allowed, the presiding justice may, before final judgment, upon motion after notice and hearing, allow a bill of exceptions to be filed and may allow such bill of exceptions.'

In Hackney v. Butler, Mass., 162 N.E.2d 68, 70, we held that, under the second sentence just quoted, 'the trial judge after judgment was without power to revive the right of a party to file a bill of exceptions after the time limited by law had expired.' The present case, where a bill...