Fields v. Paraskis

• Decision Date: 29 November 1945
• Citation: 318 Mass. 726,63 N.E.2d 906
• Parties: FIELDS et al. v. PARASKIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

318 Mass. 726

63 N.E.2d 906

FIELDS et al.

v.PARASKIS et al.

Supreme Judicial Court of Massachusetts, Plymouth.

Nov. 29, 1945.

Bill in equity by Charles G. Fields and another against Thomas Paraskis and another. From an adverse final decree, defendants appeal. To the refusal of the judge to adopt and report the report of material facts prepared by defendants, they claimed an exception.

Exceptions overruled, interlocutory decree overruling demurrer affirmed, and final decree affirmed.Appeal from Superior Court, Plymouth County; Sullivan, Judge.

Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.

L. H. Miller and D. Silverstein, both of Brockton, for plaintiffs.

W. G. Cogan, of Brockton, for defendants.

LUMMUS, Justice.

The defendants in this bull in equity, after an adverse final decree entered on April 25, 1945, from which they appealed, and a ‘finding of material facts' containing nearly seven hundred words which was filed on the same day and apparently was voluntary, Birnbaum v. Pamoukis, 301 Mass. 559, 17 N.E.2d 885;Jose v. Lyman, 316 Mass. 271, 277, 55 N.E.2d 433, 154 A.L.R. 190;Turner v. Morson, 316 Mass. 678, 57 N.E.2d 18;Jerome v. Eastern Finance Corporation, 317 Mass. 364, 365, 58 N.E.2d 122, for the only request for a report of material facts under G.L.(Ter.Ed.) c. 214, § 23, was one filed before the entry of the final decree instead of ‘within four days after [a party entitled to appeal] has been notified of the entry of the decree,’ made a motion on May 4, 1945, that the judge make another ‘report of material facts' prepared by the defendants which added more than two thousand words to the ‘finding of material facts' already filed. To the refusal of the judge to adopt and report the ‘report of material facts' prepared by the defendants, they claimed an exception, which they present to us upon a bill of exceptions.

It is true that when a judge refuses, after timely request under G.L.(Ter.Ed.) c. 214, § 23, to ‘report the material facts found by him,’ his refusal to perform his statutory duty may sometimes be such an error of law, Porter v. Porter, 236 Mass. 422, 425, 128 N.E. 795;Bartley v. Phillips, 317 Mass. 35, 43, 57 N.E.2d 26, as to give ground for an exception under G.L. (Ter.Ed.) c. 231, §§ 113, 144. Snow v. Boston Blank-Book Mfg. Co., 153 Mass. 456, 26 N.E. 1116;Bolster v. Attorney General, 306 Mass. 387, 388, 389, 28 N.E.2d 475. But the material facts that a judge in an equity case may be required to report are facts that the judge acting in good faith thinks material to the decree entered by him and that form the basis for it, and not facts material merely to the case in some aspect of it. This is fully explained in our decisions. Plumer v. Houghton & Dutton Co., 277 Mass. 209, 214, 215, 178 N.E. 716;Birnbaum v. Pamoukis, 301 Mass. 559, 17 N.E.2d 885;Sidlow v. Gosselin, 310 Mass. 395, 397, 38 N.E.2d 665;Wiley v. Fuller, 310 Mass. 597, 599, 39 N.E.2d 418;Distasio v. Surrette Storage Battery Co., 316 Mass. 133, 135, 54 N.E.2d 928;Turner v. Morson, 316 Mass. 678, 680, 681, 57 N.E.2d 18;Carilli Construction Co. v. John Basile & Co. Inc., 317 Mass. 726, 727, 59 N.E.2d 706.

The right of an appellant to require a report of material facts is not a right to catechize the judge, or to require him to deal specifically with alleged facts selected by the appellant. The appellant must accept the report that the judge makes, and argue his appeal upon that report together with the rest of the technical record, which does not include the evidence, unless the appellant has taken the precaution of seasonably requiring and thereby making part of the record a report of the evidence under G.L. (Ter.Ed.) c. 214, § 24, or c. 215, § 12. Merrill v. Everett, 293 Mass. 327, 199 N.E. 735;City of Boston v. Dolan, 298 Mass. 346, 349, 10 N.E.2d 275;Sidlow v. Gosselin, 310 Mass. 395, 398, 38 N.E.2d 665;Davis v. Newburyport Five Cents Sav. Bank, 311 Mass. 377, 381, 382, 41 N.E.2d 188;Matter of Loeb, 315 Mass. 191, 196, note, 52 N.E.2d 37;Counelis v. Counelis, 315 Mass. 694, 696, 54 N.E.2d 177. The exception taken by the defendants is founded upon a...