Burbank v. Farnham

• Decision Date: 30 November 1914
• Parties: BURBANK v. FARNHAM et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

220 Mass. 514

107 N.E. 351

BURBANK v. FARNHAM et al.

Supreme Judicial Court of Massachusetts, Suffolk.

November 30, 1914

COUNSEL

Lee M Friedman and Swift, Friedman & Atherton, all of Boston, for appellants.

Jasper N. Johnson, of Boston, for appellee.

OPINION

RUGG C.J.

This case comes before us from the municipal court of the city of Boston. During the oral argument it was suggested that the record did not set out all the material evidence upon which the findings of the single judge of that court were based. Opposing counsel not agreeing upon this point, motion was made that the appeal be dismissed, not on its merits but to enable the report to be corrected in this regard so that it might state the fact whether it did contain all such evidence.

The motion should be granted. An appeal from the municipal court of the city of Boston in this respect stands the same as exceptions from the superior court. By St. 1912, c. 649, § 8 any party aggrieved by any ruling on a matter of law by a single judge of the municipal court of the city of Boston 'may, as of right, have the ruling reported for determination by the appellate division.' That court also is given authority to make rules to regulate the preparation and submission of reports and the allowance of those disallowed by a single judge. Pursuant to that authority a rule has been adopted which puts upon the party requesting a report the burden of preparing a draft to be submitted to the judge, who is required to 'allow such report or such amended form thereof as may be necessary to conform to the facts or disallow the same in whole or in part.' Rule 38. Provision also is made by rule 41 for the extablishment of reports by the appellate division which have been disallowed by the single judge.

The statute and rules do not prevent this court in proper cases from dismissing a case pending here when there is reason to believe that through mistake, inadvertence or oversight the record does not present fairly the question of law of which review is sought. It sometimes, though rarely, happens that exceptions or a report or reservation from the superior or the Supreme Judicial Court are discharged for the purpose of correcting the record in order that justice may be done. Tighe v. Maryland Casualty Co., 216 Mass. 459, 103 N.E. 941. In strictness the exceptions, or in an equity case the appeal, are no longer pending in the superior court after entry in this court and there is nothing left in that court upon which a judge can act, even for the correction of errors. Com. v. Suffolk Trust Co., 161 Mass. 550, 37 N.E. 757. Robinson v. Brown, 182 Mass. 266, 65 N.E. 377. The exceptions or appeal must get back into the trial court before anything more can be done there. It has been the uniform practice of this court for many years, when it seems likely that justice requires it, on motion to discharge exceptions, report, reservation or appeal, in order that corrections may be made in the record by the court from which the case comes here. In such instances the names of the cases have been continued in this court for re-entry of the proper papers without the payment of another entry fee. This is the accurate and correct practice. Another course, however, sometimes has been taken in England. Both parties by consent have gone before the trial judge and obtained from him a certificate to the effect that there is error in the record transmitted to the appellate court, setting forth its nature and making the correction,...