Hillier v. Farrell

• Decision Date: 02 April 1904
• Citation: 185 Mass. 434,70 N.E. 424
• Parties: HILLIER et al. v. FARRELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 434

70 N.E. 424

HILLIER et al. v. FARRELL et al.

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1904

COUNSEL

Henry R. Skinner, for plaintiffs.

John E Abbott, for defendants.

OPINION

LATHROP, J.

This is a bill in equity filed in the superior court to have the defendants restrained by injunction from proceeding with the erection of a building within 18 feet of Belmont street contrary to certain restrictions contained in a deed. The case was referred to a master, who found that this lot and others were sold pursuant to a general scheme or plan. It appears from the master's report that the case was heard on agreed facts and oral evidence, and that the defendants objected to the admission of certain portions of the oral evidence. On the filing of the master's report, no objections or exceptions were taken. The justice of the superior court who heard the case reserved it for our consideration upon the pleadings, the master's report and the agreed statement of facts.

No regard appears to have been paid to the thirty-first and thirty-second rules in chancery of this court, which, by force of law, apply to the superior court as well as to this court. The thirty-first rule requires the master to prepare a draft report, and to notify the counsel, who may suggest such alterations thereof as they may think proper. The master then settles the draft report, and again notifies the counsel. If either party is not satisfied, he is allowed five days for bringing in written objections, and these are to be appended to the report. No exception is to be allowed to the master's report, without a special order of the court, unless founded upon an objection made before the master, and shown by his report. The thirty-second rule relates to the filing of the exceptions and setting them down for argument, and further provides: 'In every case, the exceptions shall briefly and clearly specify the matter excepted to, and the cause thereof; and the exceptions shall not be valid as to any matter not so specified.' If the master filed his report without giving the defendants an opportunity to file objections to it, their remedy was to move to recommit it. Lamson v. Drake, 105 Mass. 564.

The defendants have argued questions of evidence before us founded upon objections taken when the evidence was admitted but, as they filed no written objections or exceptions to the master's report, these questions...