Bath Iron Works, Ltd. v. Savage
| Decision Date | 06 January 1928 |
| Citation | 159 N.E. 445,262 Mass. 123 |
| Parties | BATH IRON WORKS, Limited, v. SAVAGE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Essex County; Joseph F. Quinn, Judge.
Action by the Bath Iron Works, Limited, against Bertram E. Savage. A motion that judgment be entered on the findings notwithstanding the exceptions filed by defendant and proceedings had in relation thereto was granted, and defendant brings exceptions. Exceptions overruled.F. W. Campbell, of Boston, for plaintiff.
Robert E. Burke and Edward E. Crawshaw, both of Newburyport, for defendant.
The defendant seasonably filed a bill of exceptions on March 31, 1927, to the refusal of the judge to make certain rulings of law at the trial. Within three months thereafter the defendant presented that bill of exceptions to the judge for allowance. Appearently the judge took no action respecting the exceptions and neither set the matter down for hearing nor allowed or disallowed them in whole or in part. Eight days after the expiration of three months from the filing of the bill, the clerk of the court sent to the parties and to the presiding judge a notice dated June 30, 1927, which otherwise satisfied the requirements of common-law rule 53 of superior court (1923). It is not stated that, pursuant to the notice under rule 53, the exceptions were again presented to the judge, or his attention directed to them again, or that he took any action concerning them. We infer, therefore, that no one of these things was done. Shortly after August 8, 1927, the plaintiff filed a motion that judgment be entered upon the finding of the court. At the hearing upon that motion the defendant presented requests for rulings, all of which were denied subject to his exception. The motion was granted and order made that judgment be entered notwithstanding the exceptions filed and proceedings had in relation thereto.
[1] Nothing appears in the record as to what took place between the judge and the excepting party when the exceptions were presented for allowance. We are bound to infer, therefore, that nothing was said or done at that time beyond the bald presentation of the exceptions with request that they be allowed.
It was the duty of the judge to take some action on the exceptions, when first presented to him, and within three months after being filed. The simple fact, that they were presented to him and nothing more, did not prevent the operation of rule 53. That rule provides:
The words of that rule, ‘remained without action thereon for three months,’ mean ‘without action by the judge.’ After a party has duly filed his bill of exceptions, he can take no further ‘action thereon’ save by order of the court, except to urge the judge to grant him a hearing thereon and to allow them or to act upon them. Commonwealth v. Dow, 217 Mass. 473, 482, 483, 105 N. E. 995. That is not the action meant by rule 53. The only effective action that can be taken by anybody concerning the exceptions is the action of the judge in the performance of his statutory duty to grant a hearing on the exceptions, determine whether they are conformable to the truth, and then allow or disallow them. G. L. c. 231, § 113. A safeguard is provided for the parties and the judge by rule 53, even in instances where the exceptions have been presented to the...
To continue reading
Request your trial
-
Graustein v. H.P. Hood & Sons, Inc.
...by a petition to establish the truth of his exceptions. Petition of C. F. Hovey Co., 254 Mass. 551, 151 N.E. 66;Bath Iron Works, Ltd., v. Savage, 262 Mass. 123, 159 N.E. 445. The present Rule 74 is quite different in this particular. It requires an affidavit within the time specified that t......
-
Universal Adjustment Corp. v. Midland Bank, Ltd., of London, England
...(See Day v. McClellan, 236 Mass. 330, 128 N. E. 412;Paraboschi v. Shaw, 258 Mass. 531, 532, 155 N. E. 445;Bath Iron Works, Ltd., v. Savage, 262 Mass. 123, 127, 159 N. E. 445; compare as to equity practice Rothstein v. Commissioner of Banks, 258 Mass. 196, 155 N. E. 7), it is enough to say t......
-
Commonwealth v. Kossowan
...70, 116 N. E. 961 (8 A. L. R. 1463).Trustees of Andover Seminary v. Visitors, 253 Mass. 256, 280, 148 N. E. 900;Bath Iron Works, Limited, v. Savage, 262 Mass. 123, 159 N. E. 445. It was said by Mr. Justice Holmes in Commonwealth v. Clifford, 145 Mass. 97, 98, 13 N. E. 345, 347, respecting a......
-
Sweeney v. Morey & Co.
...of his adversary to those facts. That principle is not applicable in the case at bar. The principle of cases like Bath Iron Works, Ltd., v. Savage, 262 Mass. 123, 159 N. E. 445, and Herbert v. G. E. Lothrop Theatres Co., 273 Mass. 462, 173 N. E. 539, is not pertinent because those decisions......