Everett-Morgan Co. v. Pharmacy

• Decision Date: 12 April 1923
• Citation: 139 N.E. 170,244 Mass. 460
• Parties: EVERETT-MORGAN CO. v. BOYAJIAN PHARMACY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

244 Mass. 460

139 N.E. 170

EVERETT-MORGAN CO.

v.BOYAJIAN PHARMACY et al.

Supreme Judicial Court of Massachusetts, Plymouth.

April 12, 1923.

Appeal from Superior Court, Plymouth County; Joseph Walsh, Judge.

Action of tort by the Everett-Morgan Company against the Boyajian Pharmacy and others for conversion. From a judgment for defendants, plaintiff appeals. Appeal dismissed.

The court made findings of fact and rulings of law in favor of defendants, concluding with a direction that judgment should be entered for defendants, and on the same day they were filed judgment was entered. Plaintiff contended that this was a premature entry of judgment, preventing it from filing exceptions or asking a new trial, and constituted an error of law apparent on the record, authorizing an appeal.William G. Rowe, of Brockton, for appellant.

Bergson & Ford and Harry Bergson, all of Boston, for appellees.

RUGG, C. J.

This is an appeal from a judgment in an action of tort. There are printed in what purports to be the record copies of the writ, the plaintiff's declaration, separate answers of the several defendants, plaintiff's requests for rulings, fifteen in number, defendants' requests for rulings, 21 in number, findings of fact and rulings of law including rulings upon the requests of both the plaintiff and the defendants, concluding with an order for judgment for the defendants, signed by the judge of the superior court who heard the case without a jury, the docket entries and the plaintiff's appeal from the judgment. From the docket entries it appears that the jury was discharged and by agreement of counsel hearing was had before the court on December 16, 1922, that the findings and order for judgment for the defendants was filed by the judge on January 19, 1923, that judgment was entered for the defendants on the same day, and that on January 30, 1923, the plaintiff's appeal was filed.

The judge's findings of fact and rulings of law and the requests for instructions by the parties are no part of the record. They could have been made a part of the record and properly brought to this court only by being incorporated in a report or in a bill of exceptions. This has been decided so often as hardly to require a citation of authorities. See Cressey v. Cressey, 213 Mass. 191, 99 N. E. 972;Samuel v. PageStorms Drop Forge Co., 243 Mass. 133, 137 N. E. 169, and cases collected in each opinion. Therefore no question of law raised by such findings and rulings is before us.

It is obvious that judgment for the defendants entered on the same day as the finding of the judge and his order for judgment was premature. It seems apparent from inspection of the papers printed, as well as from the briefs and statement made at the bar, that the findings and rulings of the judge were made after the conclusion of the trial and in the absence of counsel. Therefore, under rule 45 of the superior court 1923 rules, the plaintiff had a right to file a written statement that it excepted thereto within 3 days after receipt of notice from the clerk of such order, ruling or decision, Simmons v. Poole, 227 Mass. 29, 34, 116 N. E. 227, and by rule 50 and G. L. c. 231, § 113, to reduce his exceptions to writing and file them within 20 days after the order, ruling or decision was made. This rule was binding upon the judge of the superior court, who had no authority to dispense with it. Oliver Ditson Co. v. Testa, 218 Mass. 123, 125, 103 N. E. 381;Farnham v. Lenox Motor Car Co., 229 Mass. 478, 481, 118 N. E. 874 and cases collected in each decision. The last paragraph of rule 56, authorizing the entry of judgment at other times for cause shown, does not empower the court to shorten the period allowed by G. L. c. 231, § 113, for filing exceptions. There is nothing in the docket entries to indicate that an attempt was made in the case at bar to act under that rule.

Only three classes of cases can now be brought to this court by appeal. This is neither an order sustaining or overruling a demurrer, nor an order based on a case stated, and hence does not belong to the first two classes of cases described in G. L. c. 231, § 96, and Samuel v. Page-Storms Drop Forge Co., 243 Mass. 133, 137 N. E. 169. Manifestly it cannot be brought before us by appeal unless it falls within the third class there described, viz.:

‘Where an order has been entered ‘decisive of the case founded upon matter of law apparent on the record.’'

Premature entry of a judgment cannot by any reasonable interpretation fall within that description. The order for judgment was founded...