Haines Corp. v. Winthrop Square Cafe, Inc.
| Decision Date | 07 December 1956 |
| Citation | 335 Mass. 152,138 N.E.2d 759 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | The HAINES CORPORATION v. WINTHROP SQUARE CAFE, Inc. |
Jacob Levy, Boston, for plaintiff.
Joseph G. Kelly, Boston, for defendant.
Before WILKINS, C. J., and RONAN, SPALDING, WILLIAMS and CUTTER, JJ.
This is a petition to establish a draft report which the trial judge disallowed 'as not conformable to the facts.' G.L.(Ter.Ed.) c. 231, § 108, as amended. In the action, which was in contract for a failure to furnish reasonable heat under a written lease, there was a finding for the plaintiff (respondent) against the defendant (petitioner). There was a hearing before a justice in the Appellate Division. Rule 32 of the Rules of the Municipal Court of the City of Boston for Civil Actions (1952). From an order denying the petition, the petitioner appealed.
The trial judge in his disallowance of the draft report stated that the report was not in conformity with the evidence; contained statements of evidence which were inaccurate or were not part of the evidence; failed to state all the material evidence; and dealt with matters not pertinent or proper in a report of the questions sought to be reported. There was annexed to the disallowance a report in a form proposed by the trial judge which the defendant (petitioner) had refused to accept.
The justice who heard the petition in the Appellate Division filed an opinion which contained the following: At the close of the evidence the trial judge acted upon requests for rulings made by each party, made findings of fact, and found generally for the plaintiff. The defendant filed both a claim of report (not the draft report on the motion for a new trial now before us) and a motion for a new trial. That claim of report read, 'Now comes the defendant and being aggrieved by the court's finding and rulings claims a report to the Appellate Division.' It failed to meet the requirements of Rule 30 of the Rules of the Municipal Court of the City of Boston for Civil Actions (1952), as it did not contain 'a clear and concise statement of the ruling upon which a rehearing is required, sufficiently full and accurate for identification.' It could properly have been disallowed 'on the ground that the defendant had not shown itself to be entitled to a report.' Stafford v. Commonwealth Co., 263 Mass. 240, 242, 160 N.E. 820, 821. Neverthless the trial judge fixed a date for the filing of a draft report, but the date passed with no report filed. Wholly apart from the inadequate request for report, the failure to preserve whatever questions of law the defendant may have had determined its rights. Wilson v. Checker Taxi Co., 263 Mass. 425, 161 N.E. 803. At the subsequent hearing on the motion for a new trial, the defendant again filed requests for rulings. The motion was denied, and the requests for rulings were refused on the ground that the questions raised at the trial had not been preserved. In this there was no error. Questions of law which might have been raised at the trial on the merits, or which were raised and then abandoned and not preserved, cannot be raised as of right on a motion for a new trial. Petition of Energy Electric Co., 262 Mass. 534, 160 N.E. 278.
The justice in the Appellate Division concluded that there was no error either in the denial of the motion for a new trial, which was a matter resting in sound judicial discretion, or in the denial of the requests for rulings, as the trial judge did not elect to deal with them on their merits; and that 'There is nothing to merit the establishment of the defendant's draft report.'
The opinion of the justice in the Appellate Division was in substance a holding that, contrary to the allegation of the...
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Garden Homes, Inc. v. District Court of Somerville
...there is a procedure for establishing a draft report. G.L.(Ter. Ed.) c. 231, § 108, as amended. See Haines Corp. v. Winthrop Square Cafe, Inc., 335 Mass. 152, 138 N.E.2d 759. We have been informed by counsel that there has been a report by the judge of the District Court of Somerville of th......
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Altshuler v. Field
...Taxi Co., 263 Mass. 425, 161 N.E. 803; Burick v. Boston Elevated Railway, 293 Mass. 431, 200 N.E. 281; Haines Corp. v. Winthrop Square Cafe, Inc., 335 Mass. 152, 138 N.E.2d 759. We are also of opinion that there was no inconsistency between the rulings and Order of Appellate Division of the......
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...on the ground that it presented a question of law which was or could have been raised at the trial. Haines Corp. v. Winthrop Square Cafe, Inc., 335 Mass. 152, 154, 138 N.E.2d 759. We think, however, that the action of the judge in allowing it to be filed, and denying it without specificatio......
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...99, 108, 89 N.E.2d 213, 12 A.L.R.2d 669, and not preserved by incorporating it in a bill of exceptions. Haines Corp. v. Winthrop Square Cafe, Inc., 335 Mass. 152, 154, 138 N.E.2d 759. The owner contends that the verdicts were inconsistent, and that the one awarded to the contractor containe......