Graves v. Hicks

• Decision Date: 01 March 1907
• Parties: GRAVES v. HICKS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 524

80 N.E. 605

GRAVES v. HICKS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1907

COUNSEL

John T. Hicks, pro se.

M. J Creed and J. Porter Crosby, for appellee.

OPINION

HAMMOND J.

1. After a rescript from this court to the superior court ordering that the decree from which the defendant Hicks had appealed be, with a certain modification, affirmed ( Graves v. Hicks, 191 Mass. 102, 77 N.E. 831), the defendant filed a motion for a new trial upon the ground of newly discovered evidence, and that the hearing might be reopened to receive further evidence 'by reason thereof.' The hearing upon the motion took place March 23, 1906, before the justice before whom, sitting without a jury, the case was originally tried. It appears from the certificate of the judge disallowing the exceptions that he filed his decision overruling the motion on March 27, 1906 and written notice thereof was mailed by the clerk and received by counsel on the same day; that at the hearing 'no exception was taken nor in any way saved nor was there any intimation of a desire to save any exception;' that the 'first step toward claiming or saving an exception was the filing by defendant Hicks on April 4, 1906 of a paper entitled 'Claim of Appeal and Exception' in which he recites that he 'both appeals * * * from and excepts to the order, finding, decision and ruling * * * denying his prayers in his petition”; and further, that 'this was filed after the defendant Hicks' counsel had received notice of the plaintiff's intention to present for entry a final decree after rescript and only a few hours before the time for presenting said decree.'

There is a difference between saving exceptions and filing them and the statute which provides that exceptions may be filed within 20 days from the act excepted to has no reference to the time when they should be alleged. In the superior court, in actions at common law, the matter is regulated by rule 48 (now rule 45) of that court: 'No exception shall be allowed by the presiding justice, unless the same be alleged and saved at the time when the opinion, ruling, direction, or judgment excepted to is given. And all exceptions to any charge to the jury shall, unless previously saved, be alleged before the jury are sent out. When further instructions are given in the absence of counsel after the jury have retired, the presiding justice may permit exceptions thereto at any time within twenty-four hours next following. All requests for instructions shall be made in writing before the closing arguments unless special leave is given to present further requests later.' As to the meaning of this rule reference may be had to Keohane, petitioner, 179 Mass. 69, 60 N.E. 406. As said by Bigelow, C.J., in Joannes v. Underwood, 6 Allen, 241, 'this rule is a wise and salutary rule;' and we think that the principle should be applied to orders in equity proceedings, especially in a case where, as here, the suit as between the plaintiff and principal defendant is in substance an action at law. The paper alleging the exception was not filed until eight days after notice of the decision. This was...