Cressey v. Cressey

• Citation: 99 N.E. 972,213 Mass. 191
• Parties: CRESSEY v. CRESSEY et al.
• Decision Date: 27 November 1912
• Court: United States State Supreme Judicial Court of Massachusetts

213 Mass. 191

99 N.E. 972

CRESSEY v. CRESSEY et al.

Supreme Judicial Court of Massachusetts, Essex.

November 27, 1912

COUNSEL

Alden P. White, of Salem, and Guy C. Richards, for petitioner.

Wm. E Dorman and Guy Newhall, both of Lynn, for respondent Chas. A Newhall.

Wm. H Niles, Henry R. Mayo, and Robt. T. Woodruff, all of Lynn, for respondents Anna E. Emerson and Sarah E. Newhall.

OPINION

RUGG C.J.

This case is not before us properly. It is a petition for partition. A hearing was had before a judge of the superior court, who filed a careful statement of the whole case and his conclusions, entitled 'Finding by the Court.' This was a finding of the material facts and his rulings of law upon them. Its concluding words were: 'Interlocutory judgment to be entered in accordance with the foregoing findings.' But no such judgment has been entered. Two of the respondents appealed 'from the findings of the court * * * and * * * from the conclusions of the court as expressed in said finding, and from the judgment and decree made or authorized by said findings.' A bare memorandum by a judge sitting without a jury in an action at law forms no basis for an appeal grounded on an error of law and cannot be considered as a part of the record, however useful it may be for the information of the parties and as a foundation for other steps in the case. Regal v. Lyon, 212 Mass 230, 98 N.E. 698, and cases cited. Lopes v. Connolly, 210 Mass. 487, 496, 97 N.E. 80, 38 L. R. A. (N. S.) 986. This is a proceeding at law and not in equity, where in this respect the rule is different. Cohen v. Nagle, 190 Mass. 4, 76 N.E. 276, 2 L. R. A. (N. S.) 964, 5 Ann. Cas. 553. Errors of law under these circumstances can be taken advantage of only by a bill of exceptions. New York Life Ins. Co. v. Macomber, 169 Mass. 580, 48 N.E. 776. Findings of fact embodied in a bill of exceptions or a report of course are a part of the record. It has been settled practice for a long time that this court has no jurisdiction to consider an appeal until there has been a judgment. Cotter v. Nathan & Hurst Co., 211 Mass. 31, 97 N.E. 114, and cases cited. If exceptions had been filed, even though the case was not ripe for final judgment, they could have been considered for the reason that a petition for partition is a peculiar proceeding and a judgment for partition is in a sense final. Lowd v. Brigham, 154 Mass. 107, 26 N.E. 1004. See, also, ...