Freeland v. Wright
| Decision Date | 24 October 1891 |
| Citation | 154 Mass. 492,28 N.E. 678 |
| Parties | FREELAND v. WRIGHT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M.M. Taylor, for appellant.
W.B Harding, for appellee.
This is a bill in equity, brought to redeem a mortgage of real estate. The plaintiff filed exceptions to the master's report, and then moved that the master be required to report all the evidence taken at the hearing, and appealed from the order of the court denying the motion. She afterwards asked that issues be framed for a jury, and appealed from the refusal of the court to frame issues, and finally took an appeal from the final decree.
1. The exceptions to the master's report present no question of law. They all relate to findings of fact, which cannot be revised without a report of the evidence. Nichols v Ela, 124 Mass. 333.
2. The rule to the master did not require him to report any part of the evidence, and there is nothing to show that the parties were not content at the outset with the form in which the order was made. Whether the master should afterwards be ordered to report the evidence, or any part of it, was discretionary with the court. Atlanta Mills v Mason, 120 Mass. 244; Nichols v. Ela, supra. The court recommitted the case to the master that he might report more particularly the facts bearing on the principal matter in issue, and there is nothing to indicate that the court did not wisely exercise its discretion in refusing to require him at that stage of the proceedings to report the evidence.
3. If an application to frame issues for a jury would have been granted if seasonably made, the plaintiff waived her right by allowing a reference to a master, and a hearing before him, before asking for a trial by a jury. Parker v. Nickerson, 137 Mass. 487. It would be unreasonable to permit a party to go to trial before a master, and take his chances of a favorable report, and then, if dissatisfied with the result, have another trial before a jury, and thereby put the other party to unnecessary expense and trouble.
4. On an appeal from a final decree, where there is a master's report and no report of the evidence, the only question open is whether the decree is warranted by the allegations of the bill and answer and by the findings of the master. On this point there can be no doubt in the case at bar. The decree follows the pleadings and the master's report. We see no error in...
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... ... firm. But this evidence not being reported, the master's ... finding that none of these oral contracts were proved is ... final. Freeland v. Wright, 154 Mass. 492, 28 N.E ... 678; Joslin v. Goddard, 187 Mass. 165, 72 N.E. 948 ... In the beginning, the defendant's testator was the ... ...