Carilli v. Hersey
| Decision Date | 25 May 1938 |
| Citation | 15 N.E.2d 220,300 Mass. 329 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CARMELLA CARILLI v. SUMNER D. HERSEY & others. |
May 6, 1938.
Present: RUGG, C.
J., LUMMUS, QUA DOLAN, & COX, JJ.
Equity Pleading and Practice, Appeal, Motion, Affidavit. Evidence, Presumptions and burden of proof, Affidavit.
An affidavit respecting newly discovered evidence, attached to a motion for a rehearing of a suit in equity, was not conclusive of the facts therein stated.
The denial of a motion for a rehearing of a suit in equity was affirmed on appeal where the evidence heard by the judge did not require its allowance and facts found by him did not appear in the record.
BILL IN EQUITY filed in the Superior Court on December 16, 1936. The decrees appealed from were entered by order of Hanify, J.
T. B. Shea, (P.
J. Powilatis & D.
J. Lucey with him,) for the plaintiff.
A. H. Grossman, for the defendants.
This is a suit in equity brought in the Superior Court and is before us by appeal of the plaintiff from an interlocutory decree denying a motion for rehearing and from the final decree entered after rescript, following the decision reported in Carilli v. Hersey, 299 Mass. 139 .
After rescript the plaintiff filed a motion in the Superior Court that the entry of final decree be postponed and that the case be reopened for hearing of evidence newly discovered after argument of her appeal in this court. The motion was accompanied by an affidavit, signed by counsel for the plaintiff, which recited that the plaintiff had come into possession of evidence "not . . . reasonably susceptible of ascertainment before, during and after the hearings on the merits" of her bill (by which she sought to have a mortgage foreclosure sale set aside), to the effect that the newspaper in which the notice of intended sale was published upon request of a person offering for insertion such an advertisement, " will make arrangements that the notice referred to will not be inserted in editions which are put in general circulation before the public in such wise that they may be obtained from news stands and newsboys and other sources from which alone one of the public may buy or otherwise obtain a copy of such an edition, but on the contrary will insert the notice in an edition of a limited number of copies all of which are sent to the Legal Department, so-called, of the newspaper, and no one of which is put in general circulation or circulated in any such way as to be available to any member of the public, the office of the Legal Department in which the Legal Edition, so-called, is retained being within the building where the newspaper is printed, that this practice of the . . . [newspaper involved] has existed for many years, unknown to the public which had no reason...
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