Graustein v. H.P. Hood & Sons, Inc.

Decision Date30 January 1936
Citation293 Mass. 207,200 N.E. 14
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesGRAUSTEIN v. H. P. HOOD & SONS, Inc.

OPINION TEXT STARTS HERE

Exceptions from Superior Court, Middlesex County; Broadhurst, Judge.

Action of contract brought to the Superior Court by Adolph H. Graustein against H. P. Hood & Sons, Incorporated, which was heard by the trial court without a jury. On exceptions saved by both parties at the hearing and exceptions saved by the plaintiff to certain orders with respect to the defendant's exceptions.

Exceptions of plaintiff overruled, and exceptions of defendant overruled in part and sustained in part.W. A. Graustein, of Cambridge, as assignee and owner of the plaintiff's claims, pro se.

H. L. Barrett, L. A. Mayberry, and P. Nichols, Jr., all of Boston, for defendant.

RUGG, Chief Justice.

This action was tried by a judge of the Superior Court without a jury. He filed findings and rulings on February 29, 1932. The findings were for the plaintiff on counts 2, 3, 4 and 5 of his declaration, for the defendant on counts 1 and 6, and for the defendant in its declaration in set-off. The defendant filed a bill of exceptions on March 19, 1932. The plaintiff filed a bill of exceptions on March 21, 1932. No action having been taken on the bill of exceptions of the defendant for three months after filing, notice was sent to the defendant, to the plaintiff and to the trial judge by the clerk of the court on June 21, 1932, that the time to act on that bill of exceptions would expire on July 22, 1932. Beginning on June 23, 1932, various motions of the defendant for extension of time for the allowance of its bill of exceptions were presented and were allowed by the court, each motion being allowed before the expiration of the time allowed by the next preceding extension. On the same dates motions to extend the time for allowance of the plaintiff's bill of exceptions were presented and allowed. On April 18, 1933, the defendant's motion to extend the time for allowance of its exceptions to and including May 10, 1933, was allowed, and on April 20, 1933, the court directed the clerk to note on that motion that the time was extended for filing the defendant's affidavit of presentmentfor allowance of its bill of exceptions under Rule 74 of the Superior Court (1932). The plaintiff excepted to the orders of the court on the defendant's motion of April 18, 1933. The plaintiff filed a motion on June 3, 1933, to dismiss the defendant's bill of exceptions on the grounds that the defendant had failed to prosecute its bill of exceptions as required by said Rule 74, that the court had no power to grant any extensions or to allow or disallow the defendant's bill of exceptions, and that the court had no jurisdiction to act further upon that bill. This motion was denied subject to the exception of the plaintiff. On June 15, 1933, the defendant filed its affidavit of presentment under said Rule 74. The plaintiff's bill of exceptions covering these exceptions was allowed and is before us.

This bill of exceptions requires an interpretation of Rule 74 of the Superior Court (1932). That rule, so far as here material, is in these words: ‘If within three months after filing, a bill of exceptions has not been allowed or disallowed by the justice to whose opinion, ruling, direction or judgment the exceptions were taken, the clerk shall forthwith notify the parties interested and such justice that unless within thirty days thereafter, or within such further time as may be allowed, an affidavit is filed with the clerk that the bill of exceptions has been presented by a party to the proper justice for allowance, the bill of exceptions will be dismissed and judgment or decree will be entered as though no exceptions had been filed. If, within such time, the bill of exceptions is neither allowed nor disallowed, and no such affidavit is filed, the exceptions shall be dismissed by the clerk without further notice or order. The justice to whose opinion, ruling, direction or judgment the exceptions were alleged may grant further time, and no other justice may do so, except in the cases provided for by G.L. c. 231, § 115 or in the absence of such justice from the commonwealth or where any one extension does not exceed seven days.’ The rule was established pursuant to G.L.(Ter.Ed.) c. 231, § 114. It is thereby provided that, ‘If an excepting party, in any civil cause in which exceptionsmay be alleged, shall not within such time after the filing of his exceptions as the court may determine to be reasonable thus present them to the court for allowance, the court * * * may * * * order them dismissed.’ The rule relates to the allowance of bills of exceptions. Its terms are explicit. If the bill is not allowed within the period of three months after the date of its filing, then the bill can be kept alive only by filing with the clerk an affidavit, within thirty days after the expiration of such three months or within such further time as may be allowed (provided the bill of exceptions is not itself allowed within that time), to the effect that the bill has been presented to the judge for allowance. This rule differs in form and substance from earlier rules of the Superior Court pursuant to the same statute, as to the allowance of exceptions. See Common Law Rule 53 of the Superior Court (1923); Common Law Rule 54 of the Superior Court (1915); Rule 64 adopted January 6, 1912; In re Frank, petitioner, 213 Mass. 194, 99 N.E. 968;Farris v. St. Paul's Baptist Church, 220 Mass. 356, 107 N.E. 955. Those rules required that within thirty days after the expiration of the three months from filing the bill of exceptions, or within such further time as might be allowed by the trial judge, the bill of exceptions must be presented to the trial judge and be by him allowed, and if that was not done it should be dismissed. Those rules imposed on the excepting party the burden of seeing that the judge performed his duty of passing upon the bill of exceptions. If the judge did not allow the bill of exceptions within the time thus specified, it was essential that the excepting party, in order to keep his bill of exceptions alive, procure from the trial judge an order or orders extending the time for the allowance of the exceptions. In re Frank, petitioner, 213 Mass. 194, 99 N.E. 968;Barnard Mfg. Co. v. Eugen C. Andres Co., 234 Mass. 148, 152, 125 N.E. 170;Herbert v. G. E. Lothrop Theatres Co., 273 Mass. 462, 173 N.E. 539. Instances occurred, when those rules were in force, where a party could save his rights only by a petition to establish the truth of his exceptions. Petition of C. F. Hovey Co., 254 Mass. 551, 151 N.E. 66;Bath Iron Works, Ltd., v. Savage, 262 Mass. 123, 159 N.E. 445. The present Rule 74 is quite different in this particular. It requires an affidavit within the time specified that the bill of exceptions has been presented to the trial judge for his action. It does not put upon the excepting party the obligation to cause action of allowing or disallowing the bill of exceptions to be taken by the trial judge within a specified time, although doubtless he must be diligent in protecting his rights. In re Meehan, petitioner, 208 Mass. 60, 94 N.E. 393. The motions of the defendant in the case at bar to extend the time for the allowance of its exceptions were foreign to the language and design of said Rule 74. The defendant is required under this rule to present his bill of exceptions within the time specified (viz., within thirty days after the expiration of three months from the filing) to the trial judge for allowance. If the bill of exceptions is not allowed or disallowed within that time, he is required, within that same time or such further time as may be allowed, to file an affidavit that he has presented the bill of exceptions to the judge for allowance. If he does that, his duty is performed. Thereafter, responsibility for the allowance or disallowance of the bill of exceptions, or for failure to act upon it, rests upon the trial judge and not upon the excepting party.

Both parties and the trial judge in the case at bar failed to conform strictly to said Rule 74 from June 23, 1932, until April 20, 1933. The plaintiff pursued the same course as to his bill of exceptions on the main trial as did the defendant. Precise conformity to this rule required each party to procure a grant of further time for filing the affidavit described in the rule. Neither party did that in terms. Each party did procure a grant of further time for the allowance of the exceptions. Ultimate allowance of their respective bills of exceptionswas the end and aim of each party. The action of the trial judge shows that he was trying to co-operate with them in the achievement of that end and aim. Exact conformity to said Rule 74 would have been incidental to that same end and aim. Extension of time for the allowance of the bills of exceptions would have been accomplished by granting extensions of time to each party for filing the affidavit described in the rule. The orders of the trial judge allowing motions for extension of time for the allowance of exceptions were comprehensive in tenor. They were directed to the final allowance of the exceptions. It must be presumed that the trial judge intended to bring to pass a practical result in allowing those motions for extension of time for the allowance of the exceptions. It cannot be thought that he intended them to be vain gestures. The same is true of the defendant and of the plaintiff in filing their respective motions. In view of the practice under earlier rules governing the same subject, the comparative newness of Rule 74, and the manifest purpose of the parties and of the trial judge to preserve the vitality of the exceptions, we are of opinion that the several orders extending the time for the allowance of the exceptions ought to be broadly construed in the peculiar circumstances of the case at bar as including the...

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