Fitch v. Jefferson

• Decision Date: 16 December 1899
• Citation: 175 Mass. 56,55 N.E. 623
• Parties: FITCH v. JEFFERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

175 Mass. 56

55 N.E. 623

FITCH v. JEFFERSON.

Supreme Judicial Court of Massachusetts, Middlesex.

December 16, 1899

COUNSEL

Chas Cowley, for petitioner.

Trull & Wier, for respondent.

OPINION

HOLMES C.J.

As a general rule, no inquiry into the merits of a bill of exceptions is open upon a petition to prove them. Ordinarily it is not proper to call upon the court to pass upon a question of law until that question is proved to have arisen in the proceedings sought to be revised. But while it appears to us better to adhere to the rule pretty strictly, the rule is rather one of convenience and propriety than of absolute law. It is perfectly logical to dismiss a petition to prove exceptions on the ground that there is nothing in them if they are proved.

The motion before us perhaps falls, in strictness, under the general principle which we have laid down, but the form which the argument took before us, and the concessions of the counsel for the petitioner, have reduced the question to a single short point, and a point which, although it goes to the validity of the exceptions, does not touch their contents, or at most touches them only indirectly. It will save expense and time if we dispose of the case now, and, as we have a clear opinion upon the point to which we have referred, we have decided to do so.

The exceptions are to the overruling of two motions styled 'motions to set aside the verdict,' and to the refusal of rulings asked in connection with the second of these motions. The ground of objection is that the motions really were motions for a new trial, and came too late, and that the rulings should have been asked at the trial. The rulings need not be set forth. It is enough that they all might have been presented before the verdict was entered. The counsel for the petitioner conceded that, if there had been a trial, he had no case. Although we might not have entertained this motion apart from the concession, nothing was admitted by it that was not indisputable law. If these were motions for a new trial, they were filed too late, under rule 46 of the superior court. Moreover, the rulings asked were all rulings which should have been asked before the verdict was rendered. Sullivan v. Association, 170 Mass. 504, 49 N.E. 916.

It seems to us that on the face of the exceptions there was a trial within the meaning of the rule of the superior court and of decisions like that just cited. The...