Cohen v. Berkowitz
| Citation | 215 Mass. 68,102 N.E. 124 |
| Parties | COHEN v. BERKOWITZ et al. |
| Decision Date | 24 May 1913 |
| Court | United States State Supreme Judicial Court of Massachusetts |
M. H Steuer, of Roxbury, for appellant.
John F Sullivan, of Boston, for appellees.
This is the first case which has come before us under the provisions of St. 1912, c. 649. The purpose of this act is to provide a more expeditious determination of cases in the municipal court of the city of Boston, and a decision by appeal directly to this court on questions of law there raised. One or two matters of practice lie at the threshhold.
The defendant filed a draft report in the municipal court. Afterwards, the judge before whom the case was tried, without passing upon the report filed by the aggrieved party, made an amended report. There is a faint intimation that the defendant may have agreed to the amended report. But thereafter he filed a petition to the justices of the appellate division of the municipal court asking that the truth of his exceptions taken before the single judge be established. There is nothing to indicate when this was filed. Chapter 649 makes no definite provision touching the proof of the truth of reports disallowed by the judge before whom the case is tried; but section 8 contains this language 'The court shall make rules regulating the procedure * * * for the preparation and submission of reports, * * * which a single justice shall disallow as not conformable to the facts.' Pursuant to this authority, the judges of the municipal court have adopted certain rules, 'E' of which relates to the establishment of reports. The substance of this rule is that petitions for the establishment of the truth of reports shall be determined by the appellate division, or other judge or judges assigned therefor. This rule means, in conjunction with the statute, that the truth of the report shall be passed upon finally and only in this way. The provisions of Rev. Laws, c. 173,§ 110, for the establishment of exceptions taken in the superior or Supreme Judicial Court by this court sitting in banc are inapplicable to this procedure. This is in accord with the main and salutary purpose of the act, which is to expedite and make as inexpensive as is reasonably possible the final determination of questions of law arising in causes heard in the municipal court of the city of Boston. It is irregular, therefore, to print, as has been done in this case, the petition for the establishment of the truth of the report originally filed by the defendant. Its truth or falsity can be determined in the municipal court alone.
Upon the argument of the case before the appellate division, the judges filed what is termed 'Opinion and Final Order,' a copy of which is printed in the record. Such opinion is no part of the record. It has been decided many times that a decision or memorandum by a judge of the superior court, or a single justice of this court, in an action of law, is no part of the record. Cressey v. Cressey, 213 Mass. 191, 99 N.E. 972; Given v. Johnson, 213 Mass. 251, 100 N.E. 369; Regal v. Lyon, 212 Mass. 231, 98 N.E. 698. The same principle applies to the proceedings under this chapter. While such an opinion may serve a useful purpose, and be valuable to the parties, it is no part of the record upon which the case is to be argued in this court.
A further matter of detail as to the form of the papers is that the...
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Swan v. Justices of Superior Court
...is no part of the record. Standish v. Old Colony R. R., 129 Mass. 158;Cressey v. Cressey, 213 Mass. 191, 99 N. E. 972;Cohen v. Berkowitz, 215 Mass. 68, 71, 102 N. E. 124. But as was said by Gray, C. J., in Farmington River Water Power Co. v. Co. Commissioners, 112 Mass. 206 at page 213, 214......
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Morse v. Homer's, Inc
...falsity of facts alleged in a petition to establish a draft report can be determined only by the Appellate Division. Cohen v. Berkowitz, 215 Mass. 68, 70, 102 N.E. 124. An appeal from an order denying such a petition gives this court no power to determine whether the facts alleged in the dr......
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Churchill v. Churchill
...v. Nagle, 190 Mass. 4, 5, 76 N. E. 276,2 L. R. A. (N. S.) 964,5 Ann. Cas. 553. It ought not to have been printed. Cohen v. Berkowitz, 215 Mass. 68, 71, 102 N. E. 124. A copy of the docket entries in the superior court has been furnished us. It there is shown that on January 3, 1921, an orde......
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Morse v. Homer's Inc.
... ... truth or falsity of facts alleged in a petition to establish ... a draft report can be determined only by the Appellate ... Division. Cohen v. Berkowitz, 215 Mass. 68, 70, 102 N.E ... 124. An appeal from an order denying such a petition gives ... this court no power to determine ... ...