Handy v. Miner

• Decision Date: 30 November 1928
• Citation: 163 N.E. 881,265 Mass. 226
• Parties: HANDY et al. v. MINER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

265 Mass. 226

163 N.E. 881

HANDY et al.

v.MINER.

Supreme Judicial Court of Massachusetts, Hampden.

Nov. 30, 1928.

Appeal from Superior Court, Hampden County; Lummus, Judge.

Action by Herbert L. Handy against William H. Miner and others, and an action by William H. Miner against Herbert L. Handy and others, which actions were consolidated and considered together. From a final decree dismissing their petition for leave to file a bill of review after a demurrer to petition and bill had been sustained, Herbert L. Handy and others appeal. Affirmed.J. B. Ely and F. M. Kingsbury, both of Springfield, for petitioners.

E. W. Carman, of Springfield, and W. J. Bartnett, of New York City, opposed.

WAIT, J.

This is an appeal from a final decree of the Superior Court dismissing a petition for leave to file a bill of review to which a bill of review was appended, after demurrer to petition and bill had been sustained.

The ground for the review sought is contended to be error in law in certain findings of fact by the master to whom had been referred the original bills which had been consolidated and were disposed of by a single decree entered March 25, 1927, after rescript from this court in the cases of Handy v. Miner and Miner v. Handy, 258 Mass. 53, 154 N. E. 557.

Exceptions claimed by Handy to the master's reports had been overruled and the reports had been confirmed before the entry of the decrees modified by that decision. No error of law in such disposition was disclosed by the record. If there were error it was in the master's findings of fact. The judge was right in holding that a bill of review will not lie to correct them.

A bill of review lies only to correct errors of law apparent on the record, or where new matter, either arising after the decree or which could not be produced or used in the original cause, is brought by the bill to the court's attention. Clapp v. Thaxter, 7 Gray, 384;Elliott v. Balcom, 11 Gray, 286;Nashua & Lowell Railroad Corp. v. Boston & Lowell Railroad Corp., 169 Mass. 157, 47 N. E. 606;Mulrey v. Carberry, 204 Mass. 378, 90 N. E. 576;Manning v. Woodlawn Cemetery Corp., 249 Mass. 281, 144 N. E. 99.

The plaintiff claims that an error of law appears because there is, as he contends, an apparent contradiction in certain findings of fact by the master. The master found that, in August of 1914, Miner agreed to give Handy one half his holdings in stock of the company concerned. He does not, at this place in his report,...