Hacking v. Co-Ordinator of Emergency Relief Dept. of New Bedford
| Decision Date | 30 March 1943 |
| Citation | 313 Mass. 413,48 N.E.2d 41 |
| Parties | HACKING v. CO-ORDINATOR OF EMERGENCY RELIEF DEPT. OF NEW BEDFORD (two cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Bristol County; J. A. Baker, Judge.
Petition by James T. Hacking for a writ of mandamus against Hector Hainault, co-ordinator of the Emergency Relief Department of New Bedford, to compel the petitioner's reinstatement in the classified public service of the city. The petitioner's motions to dismiss the purported bill of exceptions and for entry of judgment for the petitioner and to dismiss the report were denied, and the petitioner took exceptions.
Report dismissed and exceptions sustained.Before FIELD, C. J., and DONAHUE, LUMMUS, DOLAN, and COX, JJ., petitioner.
F. Vera, of New Bedford, for petitioner.
J. B. Nunes, City Sol. and W. B. Perry, Jr., both of New Bedford, for respondent.
James T. Hacking brought a petition for a writ of mandamus against Hector Hainault, co-ordinator of the emergency relief department of New Bedford, to compel the petitioner's reinstatement in the classified ‘public’ service of the city of New Bedford. The bill of exceptions states that a judge of the Superior Court, on November 24, ‘1942,’ filed his findings, rulings and an order that the writ issue commanding Hainault to reinstate Hacking to the position from which it was alleged he had been removed, and that a copy of these findings, rulings and order was received by each counsel on November 25, 1941. From the docket entries, however, it appears that the findings, rulings and order were filed on November 24, 1941, and not 1942. Hainault had seasonably presented certain requests for rulings, some of which were denied by the judge in his findings, rulings and order. No claim of exceptions was ever filed by Hainault in compliance with Rule 72 of the Superior Court (1932) to the denial of any of his requests for rulings, nor did he file any claim of exceptions to the findings, rulings and order that were filed on November 24, 1941.
Hainault, on December 10, 1941, through a representative of his counsel and in the presence of Hacking's counsel, conferred with the trial judge and stated that through inadvertence Hainault's counsel had failed to file a claim of exceptions within the time provided by the rules, and orally requested the judge to report the case to this court. The judge inquired if it were possible to adjust the case and was informed that there had been talk of settlement, whereupon he suggested that the parties continue to confer, and, if a settlement could not be agreed upon, he ‘would ten consider the question of whether he would or would not report the case’ to this court. The representative of Hainault's counsel stated that the case would soon be ripe for judgment if nothing was done by way of ‘filing any papers in the Clerk's Office.’ ‘Defendant's [respondent's] counsel stated that he would file a bill of exceptions,’ and on December 15, 1941, a document entitled ‘Bill of Exceptions of * * * Hainault’ was filed and notice thereof given to Hacking's attorney.
The alleged bill of exceptions recites that Hainault filed requests for rulings, but contains no allegation that any exceptions ever were claimed. On January 8, 1942, the trial judge was informed by counsel that no settlement of the case was possible, and he ‘advised’ counsel that he ‘would report’ the case and directed the respondent to file a draft report. At that time no exception was taken by the petitioner to this. On January 27, 1942, a ‘Draft Report’ was filed. At a conference held on March 26, 1942, the trial judge directed Hainault's counsel to redraft the report and submit it to Hacking's counsel for his approval and then present it for the judge's signature. On April 13, 1942, the report was completed and presented to Hacking's counsel, who approved its form and contents, but notified the judge that he objected to his reporting the case for the reason that it had gone to judgment, although the clerk had not made an entry of judgment on the docket. Thereupon the judge assigned the matter for hearing on April 21, 1942. A motion filed on that date to dismiss the ‘purported’ bill of exceptions was allowed on May 13, 1942. A motion, also filed on April 21, 1942, for the completion of record ‘by entering judgment for the [the petitioner] as of December 22, 1941 and by issuing the writ of mandamus,’ was denied on May 13, 1942, as was a motion to dismiss the report that was filed on January 27, 1942. Hacking seasonably filed his exceptions to the denial of these motions. On May 13, 1942, the judge, ‘at the request of * * * [Hainault] previously made reported the case’ to this court, and Hacking seasonably filed his ‘exception to ruling allowing the defendant's [respondent's] request to report the case,’ and ‘his exceptions to the Court's reporting the case.’
Hainault concedes that if he had done nothing after November 24, 1941, the date on which the judge's order was filed, the case would have gone to judgment on December 22, 1941. He also concedes, for the ‘sake of argument,’ that the bill of exceptions was filed for the sole purpose of holding up judgment pending consideration by the judge of the question of the respondent's request for a report of the case. It is apparent from the record that none of the parties concerned, including the judge, ever entertained a thought even that the bill of exceptions had any standing whatever.
Rule 79 of the Superior Court (1932) provides, as far as material, that * * *’ Rule 72 of the Superior Court (1932) provides, as far as material, that ‘Exceptions to any * * * opinion, ruling, direction or judgment made in the absence of counsel shall be taken by a writing filed with the clerk within three days after the receipt from the clerk of notice thereof.’ General Laws (Ter.Ed.) c. 231, § 113, provides, as far as material, that ‘exceptions shall be reduced to writing in a summary manner and filed with the clerk * * * in cases tried without a jury, within twenty days after the notice of the decision has been received, unless further time is allowed by the court’ (see Rule 73 of the Superior Court [1932]), and section 96 of said chapter provides, in part, that ‘An appeal from an order of the superior court shall be claimed within twenty days after it is made * * *.’ In the case at bar, which comes to this court by way of purported report, there was no reservation for a report until January 8, 1942. It is not open to contention that there was any such reservation on December 10, 1941. The suggestion of the judge at that time that, if a settlement could not be agreed upon, he ‘would then consider the question of whether he would or would not report the case,’ did not amount to a reservation of the case for a report. Compare Porter v. Boston Storage Warehouse Co., 238 Mass. 298, 301, 130 N.E. 502. Hainault concedes that if the purported bill of exceptions filed on December 15, 1941, had not been filed, the case would have gone to judgment on December 22, 1941. The important question for determination is whether the filing of that bill of exceptions prevented the case from going to judgment on December 23.
‘It is not easy to give a definition of the term ‘ripe for judgment’ as used in G.L.(Ter.Ed.) c. 235, § 2. ‘It has been said in general to be ‘when, under the last entry, the case seems to have been brought to a final determination, and everything seems to have been done that ought to be done before the entry of a final adjudication upon the rights of the parties.’ American Wood Working Machinery Co. v. Furbush, 193 Mass. 455, 457, 79 N.E. 770. In the application of this rule numerous cases have been held ripe for judgment although some matter remained on the surface of the record undisposed of.'' Home Finance Trust v. Rantoul Garage Co., 300 Mass. 86, 88, 89, 14 N.E.2d 153, 154, and cases cited. The test applied in the case just cited was whether some ‘matter of substance had been placed on the record which suspended the automatic entry of judgment’ (300 Mass. at page 89, 14 N.E.2d at page 154), and in applying this test to the facts of the case, it was decided that the pendency of a report to the Appellate Division to correct errors in a writ of review in a District Court constituted ‘insubstantial matter on the surface of the record’ (300 Mass. at page 88, 14 N.E.2d at page 154), for the reason that the established method to correct errors in a writ of review in a District Court is by appeal to the Superior Court, the Appellate Division having ‘no jurisdiction in the premises.’ 300 Mass. at page 88, 14 N.E.2d at page 154.
Hainault took no exception, as provided by Rule 72 of the Superior Court (1932), and although the alleged bill of exceptions was filed within the twenty days provided by Rule 73, it had no foundation and could not be allowed. Riley v. Brusendorff, 226 Mass. 310, 313, 115 N.E. 311. Such exceptions must be treated as of no...
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Healy v. McAbee
...entered in the clerk's office before the case could be said to be ripe for judgment. See Hacking v. Coordinator of the Emergency Relief Dept. of New Bedford, 313 Mass. 413, 416-417, 48 N.E.2d 41 (1943), and cases cited. Compare Sullivan v. Jordan, 310 Mass. 12, 16-17, 36 N.E.2d 387 (1941). ......