Crawford v. Roloson

• Decision Date: 01 December 1925
• Parties: NITA M. CRAWFORD v. ROBERT M. ROLOSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 163

NITA M. CRAWFORD v. ROBERT M. ROLOSON.

Supreme Judicial Court of Massachusetts, Barnstable.

December 1, 1925

November 20, 1925.

Present: RUGG, C.

J., BRALEY, PIERCE WAIT, & SANDERSON, JJ.

Land Court Exceptions: dismissal for failure to enter seasonably. Words "As soon as may be."

Under G.L.c. 185 Section 15; c. 212, Section 11, the duty of preparing for the Supreme Judicial Court all papers touching any questions coming before it from the Land Court is placed directly, unequivocally and exclusively on the recorder of that court; from the performance of that duty he cannot be relieved. A delay from August 17, when a bill of exceptions was allowed in the Land

Court, to September 23, when the excepting party for the first time gave directions for preparation of the necessary copies for entry of the case in this court, is not a compliance with G.L.c. 231, Section 135, and on a motion that the exceptions be dismissed for want of prosecution, the judge should grant a request for a ruling to the effect that on all the evidence it could not be found that the excepting party had proceeded with due diligence to enter the exceptions in the full court "as soon as may be," even if the delay was caused by the going away on a vacation of counsel for the excepting party and by reason of the fact that in preparing carbon copies for the printing of the record it was found that certain portions of the record had been mislaid in that counsel's office.

An exception to a ruling denying a motion in the Land Court to dismiss exceptions for want of prosecution must be overruled where it appears that, after several continuances of the hearing on the motion over a period of about a month, the exceptions were entered in this court on a day previous to the final hearing on the motion; following Silverstein v. Daniel Russell Boiler Works, Inc., ante, 137.

PETITION, filed in the Land Court on January 17, 1923, for the registration of land in Barnstable.

In the Land Court, the petition was heard by Davis, J., by whose order there was entered a decree determining the boundary line for registration. The petitioner alleged exceptions.

In the Land Court, the respondent filed a motion that the petitioner's exceptions be dismissed for lack of prosecution. Proceedings relating thereto are described in the petition. The motion was denied. The respondent alleged exceptions.

F. Rackemann, for the respondent.

E.

I. Smith, (F.E.

Crawford with him,) for the petitioner.

RUGG, C.J. This is a bill of exceptions relating to questions raised in the Land Court on the motion of the respondents that the petitioner's exceptions be dismissed for want of prosecution and failure to enter the same in the Supreme Judicial Court in accordance with the statute. The pertinent facts as set out in the exceptions are that the decision of the Land Court was filed on February 6, 1925, and that the petitioner's "voluminous bill of exceptions after several hearings, and many changes and additions, was finally allowed on August 17, 1925." On September 15, 1925, the present motion to dismiss was filed. It was heard on September 23, 1925. Further findings of the judge are: "In order to save the labor and expense of having a new copy prepared for the printer in the recorder's office, it was agreed between the recorder and counsel for the petitioner that the latter should present a full carbon copy of the bill of exceptions as allowed. One of the petitioner's counsel then went away on his vacation, and in preparing the carbon copies it was found that certain portions had been mislaid in his office. Messages were exchanged between counsel for the petitioner, who was in Boston, and his associate in whose office the missing carbons had been mislaid, but the carbons were not found until the latter returned from his vacation on or about September 16. Meantime no order had been placed in the recorder's office for certified copies of the record necessary for entry in the Supreme Judicial Court. Such copies are not made in the recorder's office until the bill of exceptions is ready for print." The judge entered an order that the "petitioner must forthwith furnish the recorder with the carbon copy of the bill of exceptions as allowed or order a full copy made in the recorder's office, and then at once take the necessary steps to have the certified copies prepared and the bill of exceptions printed."

The hearing was continued to October 9. Further findings then made were that on September 23 the petitioner for the first time gave directions for preparation of the necessary copies for entry of the case in this court. Shortly thereafter the petitioner's counsel tendered to the recorder a carbon copy of the bill of exceptions to be compared with the original in order that the recorder might certify the copy to be correct for printing. The case was continued again to October 21 for further hearing. It then appeared that the petitioner's bill of exceptions had been entered in this court on October 20. Thereupon the motion to dismiss was denied subject to the respondent's exceptions.

The delay from August 17 to September 23 was not in compliance with the statute. The petitioner in his brief states that "In the Superior Court, exceptions, when allowed, are printed on order of the excepting party, and the estimated cost or some proportion thereof is deposited for the purpose. The papers however, are prepared and sent to the printer and caused to be printed by the clerk of the Superior Court, after proper order has been given. In the Land Court, on the contrary, nothing is done by the Land Court about printing, because that court has no appropriation to defray the cost of printing. The result is that the papers are required by the Land Court to be printed by the parties themselves employing their own printers, not using the originals but copies. . . . The result is that in the Land Court, the parties must first procure copies of the original papers certified by the registrar [recorder] or his employees. Afterwards, on certification by the printers, the printed copies are certified to this Court by the registrar [recorder] as correct copies. This is a practice with which the members of the bar are not in general acquainted, and in this particular instance the petitioner's counsel did not know of it until they were informed by the Judge of the Land Court. . . . Until informed of this practice, they were totally unaware that the papers in the case were to be so prepared and certified." If this is a correct statement of the facts as to the...