Boston Edison Co., In re

• Decision Date: 10 May 1960
• Citation: 166 N.E.2d 902,341 Mass. 86
• Parties: In re BOSTON EDISON COMPANY, Petitioner. Charles CIFRE, Trustee, v. BOSTON EDISON COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 902

166 N.E.2d 902

341 Mass. 86

In re BOSTON EDISON COMPANY, Petitioner Charles CIFRE, Trustee, v. BOSTON EDISON COMPANY.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued March 7, 1960.

Decided May 10, 1960.

Frank B. Frederick, Boston (Victor H. Kazanjian, Boston, with him), for Boston Edison Co.

Gregory Sullivan, Newton Highlands, for Cifre.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, and CUTTER, JJ. CUTTER, Justice.

A petition under G.L. c. 79 for the assessment of damages occasioned by a taking by the respondent (Edison) was referred to an auditor, whose findings were to be final. Edison, in accordance with Rule 90 of the Superior Court (1954), filed objections to the auditor's report and requested that he summarize the evidence with respect to each objection. After the auditor filed his report, Edison, on May 22, 1957, filed three motions: (a) to discharge the report and for a new trial; (b) to recommit the report to require the evidence to be reported; and (c) to recommit the report for proper summaries. Pursuant to Rule 46 of the Superior Court (1954) Edison's counsel submitted an affidavit referring to the testimony pertinent to Edison's objections. The judge denied all three motions. On July 8, 1957, Edison filed a bill of exceptions (bill No. 1) relating to the denial of these motions.

On September 4, 1957, Edison filed a motion for a new trial or for recommittal. On November 22, 1957, the judge (1) overruled Edison's objections to the report, (2) denied the motion for a new trial or to recommit, and (3) ordered judgment for the petitioner in the sum fixed by the auditor. Edison with respect to these rulings filed a second bill of exceptions (bill No. 2).

On February 14, 1958, the judge (possibly feeling that the motion of September 4, 1957, took the place of those of May 22, 1957) disallowed bill No. 1. He allowed bill No. 2. Edison on March 6, 1958, within the twenty days allowed by Rule 22 ¹ of the Rules for the Regulation of Practice before the Full Court (1952), as amended on November 4, 1955 (332 Mass. 790), filed in this court a petition to establish the truth of the exceptions stated in bill No. 1. A commissioner found that bill No. 1 did conform to the truth.

As of October 8, 1959 (when bill No. 3, mentioned below, was allowed), Edison had never given the clerk of the courts any order for preparation of papers for this court with respect to bill No. 2, under G.L. c. 231, § 135, as amended through St.1941, c. 187, § 1 (later amended by St. 1959, c. 109). On December 1, 1958, bill No. 2 in effect was dismissed ² by a judge of the Superior Court because of Edison's failure to comply with § 135. On February 4, 1959, this court (see G.L. c. 231, § 133, and c. 211, § 11) granted leave to Edison to claim exceptions to, and to appeal from, the order dismissing bill No. 2. Edison seasonably filed a third bill of exceptions (bill No. 3) relating to the dismissal of bill No. 2. Edison also claimed an appeal from this order but this appeal has not been perfected.

1. No one of the three bills of exceptions purports to incorporate, either in the text or by reference, the auditor's report, the defendant's objections to the auditor's report, the auditor's summaries of evidence appended to his report, Edison's motions referred to in bill No. 1, Edison's counsel's affidavit under Rule 46 relating to these motions, or Edison's motion for a new trial or for recommittal. On January 7, 1960, this court denied Edison's motion to extend the record to include certain of these papers. Although Edison has printed these papers in an appendix to its brief, they are not properly before us for purposes of the bills of exceptions. See Sarkesian v. Cedric Chase Photographic Laboratories, Inc., 324 Mass. 620, 622-623, 87 N.E.2d 745, 12 A.L.R.2d 899. See also Staples v. Collins, 321 Mass 449, 450-451, 73 N.E.2d 729. In New England Gas & Electric Ass'n v. Ocean Acc. & Guar. Corp. Ltd., 330 Mass. 640, 644-645, 116 N.E.2d 671, and Wasserman v. Roach, 336 Mass. 564, 146 N.E.2d 909, where questions relating to the reports of auditors whose findings were to be final were reviewed upon bills of exceptions, the original papers show that the auditor's reports and related papers were incorporated by reference in the bills of exceptions. Cf. an appeal under G.L. (Ter.Ed.) c. 231, § 96, from an order for judgment upon an auditor's report with findings of fact final, United States, Fidelity & Guaranty Co. v. English Constr. Co., 303 Mass. 105, 108-110, 20 N.E.2d 939, where the auditor's report would be part of the record on appeal. Cf. also Untersee v. Untersee, 299 Mass. 417, 420, 13 N.E.2d 29; Harrington v. Anderson, 316 Mass. 187, 190-192, 55 N.E.2d 30. Even if under the third paragraph of G.L. c. 231, § 135 (as amended through St.1941, c. 187, § 1), we could order these papers transmitted to us for consideration, such a power should be exercised sparingly where necessary papers should have been incorporated verbatim or by reference in the several bills of exceptions. Without these papers we are in no position upon bill No. 1 to determine (a) whether the judge abused his discretion in denying the motions for a new trial, to discharge the report, and to recommit in order to require the evidence to be reported (see Barrows v. Checker Taxi Co., 290 Mass. 231, 235, 195 N.E. 112; Ravage v. Johnson, 316 Mass. 558, 562, 56 N.E.2d 25; Shaw v. United Cape Code Cranberry Co., 332 Mass. 675, 679, 127 N.E.2d 296) or (b) whether the summaries of evidence were inadequate. Although it does appear in bill No. 1 that, with reference to two objections to the auditor's report, the auditor refused to give any summary of evidence, since the objections themselves are not properly in the record, we are not in a position to determine whether such summaries were required under Rule 90 of the Superior Court (1954).

2. Bill No. 3 questions the correctness of the order of December 1, 1958, by which bill No. 2 was dismissed. Bill No. 2 was allowed, and bill No. 1 disallowed, on February 14, 1958. Under G.L. c. 231, § 135 (as amended through St.1941, c. 187, § 1), 'the party having the obligation to cause the necessary papers * * * to be prepared shall give to the clerk * * * within ten days after the case becomes ripe for final prepartion and printing of the record for the full court, an order in writing for the preparation of such papers and copies of papers for transmission to the full court.' There appears to be no direct precedent controlling in the somewhat unusual situation created by the disallowance of bill No. 1. The judge who dismissed bill No. 2 had little in the statute, court rules, or decided cases to guide him. Bill No. 1 did not become ripe for final preparation of the record at least until the case was ripe for final disposition because of an order for judgment or other order decisive of the case. See Anti v. Boston Elev. Ry., 247 Mass. 1, 3-4, 141 N.E. 598; Driscoll v. Battista, 311 Mass. 372, 373, 41 N.E.2d 16; Rines v. Justices of the Superior Court, 330 Mass. 368, 373-374, 113 N.E.2d 817, appeal dismissed 346 U.S. 919, 74 S.Ct. 309, 98 L.Ed. 414; Bean v. 399 Boylston St. Inc., 335 Mass. 595, 596, 141 N.E.2d 363. Cf. Vincent v. Plecker, 319 Mass. 560, 563, 67 N.E.2d 145. As stated by Rugg, C. J., in Capano v. Melchionno, 297 Mass. 1, 13, 7 N.E.2d 593, 599, 'the public welfare and the rights of parties require that questions of law arising at a single trial ought to come before the full court by one record and ought not to be split into two or more separate proceedings.' In accordance with this principle, when bill No. 2 was allowed on February 14, 1958, bill No. 1, if it also had been allowed, could have been included in the same record. See Brooks v. Shaw, 197 Mass. 376, 378-379, 84 N.E. 110; Stoneham Trust Co. v. Aronson, 296 Mass. 154, 156, 5 N.E.2d 37. Cf. Gifford v. Commissioner of Pub. Health, 328 Mass. 608, 617- 619, 105 N.E.2d 476. When bill No. 1, however, was disallowed, the possibility existed that Edison would file within twenty days, under Rule 22, as it then read (332 Mass. 790), of the Rules for the Regulation of Practice before the Full Court (1952), a petition to establish the truth of the exceptions. This was, we think, sufficient to prevent the case from being ripe for judgment. Certainly, if, at the expiration of ten days after the disallowance of bill No. 1 and the allowance of bill No. 2, judgment had been entered on the docket, and then within twenty days of the disallowance, as in fact was done, Edison had filed its petition to establish the truth of its exceptions in bill No. 1, it would have been necessary to vacate the judgment or to correct the docket to conform to the fact. See Everett-Morgan Co. v. Boyaljian Pharmacy, 244 Mass. 460, 462, 139 N.E. 170. Cf. Higgins v. First Natl. Stores, Inc., Mass., 165 N.E.2d 882. Accordingly, we hold that the possibility of the filing of that petition prevented bill No. 2 from being ripe for the final preparation of papers under § 135. Cf. Home Owners' Loan Corp. v.Sweeney, 309 Mass. 26, 30, 33 N.E.2d 575, where the pendency of an appeal which would not lie (see 309 Mass. at page 27, 33 N.E.2d at page 577) under G.L. c. 231, § 96, was held not to prevent the allowance of a bill of exceptions from making a case 'ripe' for final preparation of the papers. In the circumstances, Edison's failure to give within ten days of the allowance of bill No. 2 a written order under § 135 for the preparation of the papers relating to that bill did not constitute ground for the order dismissing bill No. 2.

3. If the exceptions in bill No. 3 were sustained, bill No. 2, before its presentation to us, would await final disposition of bill No. 1 or sufficient action with respect to it to allow its inclusion with bill No. 2 in a record for transmission to this court. If we were to remand bill No. 1 to the Superior Court for inclusion in a record...