Dorr v. Schenck
| Decision Date | 03 March 1905 |
| Citation | 187 Mass. 542,73 N.E. 532 |
| Parties | DORR v. SCHENCK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Louis
E. Guillow, for petitioner.
A. S Hayes and A. G. Sleeper, for defendant.
We have now the unusual case of a prevailing party, against whom exceptions were taken, presenting a petition to prove the exceptions filed by his adversary. The petition is brought under Rev. Laws, c. 173, § 110, which applies not only to cases in which the judge disallows or fails to sign and return the exceptions, but also to cases in which he alters any statement therein. In this case the judge allowed the defendant, the excepting party, to alter the exceptions against the plaintiff's objection; and the plaintiff treats this as an alteration of them by the judge, within the meaning of the statute. Assuming that she is correct in this we must consider the nature of the alteration.
It is a familiar rule of law that amendments and alterations of exceptions, after they are filed, are presumably for the purpose of presenting the questions of law in the best form. As was said in O'Connell, Petitioner, 174 Mass. 254, 256, 53 N.E. 1001, 1002, 54 N.E. 558: But if he fails to file a bill of exceptions within the prescribed time, he loses his right to have them considered; and, if he files a bill containing certain exceptions, and omits altogether to include certain others that were duly taken, these cannot be added to a bill after the expiration of the time within which they might be filed. Morse v. Woodworth, 155 Mass. 233-241, 27 N.E. 1010, 29 N.E. 525; O'Connell, Petitioner, ubi supra; Hector v. Boston Electric Light Co., 161 Mass. 558, 37 N.E. 773, 25 L. R. A. 554. This brings us to the facts of the present case.
At the close of the plaintiff's evidence, the defendant asked the court to rule that there was no evidence that would warrant a verdict for the plaintiff. The judge refused, and the defendant took exception. The defendant then called witnesses, and at the close of the evidence made the same request, and, on its refusal, took exception. His bill of exceptions stated the request and exception in reference to the plaintiff's evidence, but failed to mention the subsequent request and exception. He was allowed by the judge, long after the expiration of 20 days, to amend his bill so as to state the exception as taken on the refusal of the request made at the close of all the evidence. If we are to construe the bill strictly, as intended to include only what occurred at the end of the plaintiff's evidence, and consider the exception referring to all the evidence as a separate and independent subject, the amendment was improperly allowed, and the plaintiff was aggrieved by the order. If we construe it liberally, looking at the probable purpose of the defendant to state in full his exceptions upon the evidence, the amendment should be held proper, for the purpose of presenting that which was intended, but inadvertently left incomplete. We think that the right of a...
To continue reading
Request your trial