Barrell v. Globe Newspaper Co.

• Decision Date: 11 September 1929
• Citation: 167 N.E. 910,268 Mass. 99
• Parties: BARRELL v. GLOBE NEWSPAPER CO. SAME v. POST PUB. CO. PETITION OF POST PUB. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 99

167 N.E. 910

BARRELL

v.GLOBE NEWSPAPER CO.

SAME

v.POST PUB. CO. PETITION OF POST PUB. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 11, 1929.

Exceptions from Superior Court, Suffolk County; W. H. Whiting, Judge.

Actions by Alexina C. Barrell against the Globe Newspaper Company, and by Alexina C. Barrell against the Post Publishing Company. Verdict for plaintiff in each case, and both parties bring combined bill of exceptions. Motions of defendants to dismiss exceptions granted, and defendant Post Publishing Company's petition to establish truth of exceptions dismissed.W. R. Bigelow, of Boston, for plaintiff.

E. A. Whitman, of Boston, for defendant Post Publishing Co.

F. T. Leahy, of Boston, for defendant Globe Newspaper Co.

RUGG, C. J.

The two first named cases are actions of tort. The third case is a petition to establish exceptions arising on a motion in the Superior Court to dismiss the exceptions of one of the defendants, the Post Publishing Company, for failure to prosecute. The main controversy arises out of two actions of tort by the same plaintiff, one against the Post Publishing Company, the other against the Globe Newspaper Company. The cases were tried together. They were not merged into one case but remained separate and distinct trial actions. Lumiansky v. Tessier, 213 Mass. 182, 188, 189, 99 N. E. 1051, Ann. Cas. 1913E, 1049. It is stated in the commissioner's report on the petition to establish exceptions respecting the trial of the two cases: ‘At the close of the testimony each defendant seasonably made a motion for a directed verdict in its favor. Both motions were denied. Plaintiff excepted to certain rulings admitting evidence and to certain rulings and refusals to rule. Defendant Globe Newspaper Company excepted to certain rulings and refusals to rule and to the denial of its motion for a directed verdict. Petitioner excepted to certain rulings admitting evidence, to certain rulings and refusals to rule and to the denial of its motion for a directed verdict. The jury returned a verdict for the plaintiff for nominal damages in each case. Each party filed a bill of exceptions. By agreement between counsel approved by the court a combined bill of exceptions embodying the exceptions of all parties was filed and allowed.’

The statutes do not expressly confer the right upon parties in these circumstances to join in a single bill of exceptions. A doubt was thrown out as to the propriety of a single bill of exceptions where two or more cases are tried together in Moseley v. Washburn, 165 Mass. 417, 418. The practice is now firmly established that in such joint trial one bill of exceptions may be filed in behalf of all aggrieved parties on the same side of the controversy. Doherty v. Phoenix Ins. Co., 224 Mass. 310, 313, 112 N. E. 940;Shapiro v. Union Street Railway, 247 Mass. 100, 102, 141 N. E. 505. In Browne v. Hale, 127 Mass. 158, 162, it was said by Gray, C. J.: ‘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 exceptions. * * *’ Thus the practice is recognized that all parties, whether adversary or having a common interest, aggrieved by rulings at the same single or joint trial may, if they can, unite in one bill of exceptions wherein all the alleged errors of law may be set forth. The allowance of the exceptions of all parties combined in one bill of exceptions was proper.

After the allowance of this joint bill of exceptions dispute arose as to the payment of the expense of printing the exceptions for determination by this court.

The consolidated bill of exceptions was printed apparently by the plaintiff and the defendant the Globe Newspaper Company. When the case came on to be heard in this court each defendant presented a motion that ‘the exceptions be dismissed for failure to prosecute the same as required by law.’ The motion sets out the allowance of the consolidated bill of exceptions on March 22, 1928, and avers that the printing of said bill was not ordered and no deposit was made therefor until April 18, 1928, twenty-seven days thereafter. Affidavit in behalf of the plaintiff does not controvert the dates and time thus stated except that the estimate of cost of printing was received from the clerk of courts on March 26. These must be accepted as true. This affidavit tends to show that there was correspondence and negotiation, instituted by the plaintiff, between the parties regarding a sharing of the expense of printing the exceptions, which came to naught; that a petition was filed by the plaintiff for a revocation of the allowance of the combined bill of exceptions, see Thorndike, petitioner, 254 Mass. 256, 261, 150 N. E. 296, and a petition to dismiss the defendants' exceptions for failure to prosecute which was allowed by the court as to the Post Publishing Company but denied as to the Globe Newspaper Company because it agreed to pay its share of the expenses. The plaintiff contended that the expense should be shared equally by all parties to the consolidated bill of exceptions, while the defendants contended that the plaintiff should bear the whole expense. The plaintiff was right and the defendants were wrong in the positions thus taken. Each party originally had filed its separate bill of exceptions. Each was a party by its own consent to the combined bill of exceptions embodying the exceptions of all parties, which was filed and allowed by the court. No order of court was entered touching the expense of prosecuting that combined bill. It was the duty of each party in these circumstances to share equally in the expense of printing such a bill of exceptions, or to seek an order of court as to the division of such expense between the parties. No statute governs the precise facts here disclosed. It is provided by G. L. c. 231, § 133, that if the excepting party delays beyond the time there specified to enter the exceptions or to take other steps there pointed out, the exceptions may be overruled by the court by which they were allowed. By G. L. c. 231, § 135, the imperative duty is cast upon the excepting party to make proper copies and to enter the exceptions in the Supreme Judicial Court ‘as soon as may be after’ the allowance of the exceptions. Crawford v. Roloson, 254 Mass. 163, 149 N. E. 707. That burden in the case of a combined bill of exceptions, and in the absence of an order of court covering the subject, rests equally upon all parties to that bill. It rests no more upon one party than upon another. If each party had pressed to allowance his own bill of exceptions, plainly he could secure consideration of his own exceptions only by complying with the mandate of the statute as to preparing papers and printing the exceptions. The same rule obtains when there is a single combined bill setting forth the exceptions of each party. One excepting party cannot stand idly by and compel the other to pay all expenses, and still preserve its rights as an excepting party. It is manifest that the case cannot halt because of disputes between the excepting parties as to bearing the...