Holton v. American Pastry Prods. Corp.

• Decision Date: 30 January 1931
• Citation: 174 N.E. 663,274 Mass. 268
• Parties: HOLTON et al. v. AMERICAN PASTRY PRODUCTS CORPORATION.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 268

174 N.E. 663

HOLTON et al.

v.AMERICAN PASTRY PRODUCTS CORPORATION.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 30, 1931.

Appeal from Appellate Division of District Court; Robert Walcott, Special Judge.

Action by Jesse A. Holton and others against the American Pastry Products Corporation. Finding for plaintiff, and case reported to the Appellate Division of the District Court. From an order dismissing the report, defendant appeals.

Affirmed.

John W. Gorman, of Jamaica Plain, for appellant.

Harold G. Jackson, of Boston, for appellees.

RUGG, C. J.

The plaintiffs in this action seek to recover from the defendant a sum alleged to be due for legal services rendered and disbursements made on its behalf. The declaration contains one count upon an account annexed. In the answer there is pleaded general denial, payment and recoupment.

[2] The defendant at the trial on the merits did not file any requests for rulings. The concluding part of the report, after stating the finding for the plaintiffs, continues in these words: ‘The defendant having duly filed his claim for report and being aggrieved by this exclusion of evidence [earlier set out in detail] and the finding for the plaintiffs, I hereby report the case to the Appellate Division for determination.’

The defendant has argued at some length that there was not sufficient evidence to sustain the burden of proof resting on the plaintiffs and to support the finding in their favor. That point is not open to it. It is provided by Rule 28 (1922) of the District Courts, as amended on June 20, 1929, that ‘requests for rulings on any matter of law * * * shall be in writing and presented to the court before the closing arguments, unless special leave is given to present requests later. * * * A request for a ruling that upon the law and all the evidence a finding should be made for the plaintiff or defendant, as the case may be, shall contain full specifications of the grounds upon which the request is based, as precise as the nature of the case permits, and no other grounds may as of right be argued upon review.’ Power is conferred by G. L. c. 218, § 43, as amended by St. 1922, c. 532, § 9, upon the judges of all the district courts except the Municipal Court of the City of Boston (as to which see G. L. c. 218, § 50; c. 231, § 108) to ‘make and promulgate uniform rules regulating * * * the preparation and submission of reports * * * and the practice and manner of conducting business in cases which are not expressly provided for by law.’ The rule already quoted is within the scope of the power thus conferred. It regulates the practice and manner of conducting business in cases not expressly provided for by law. There is no express provision of law as to the presentation of requests for rulings. It was held in Carp v. Kaplan, 251 Mass. 225, 146 N. E. 779, that Rule 44 of the Superior Court (1923) was valid, to the effect that the ‘question whether the court should order a verdict must be raised by a motion’ and not by ‘a request for instructions to the jury.’ Rule 28 as amended, already quoted, falls within the same principle. The rule is in the interests of fairness, both to the court and to opposing counsel. In the absence of a rule, upon the refusal of such a request for a finding as matter of law, if the judge does not ask the requesting counsel to point out more particularly the propositions of law upon which he relies, it is possible to raise in an appellate court any question of law actually involved, though not referred to or even thought of by the judge or counsel at the trial. Parrot v. Mexican Central Railway, 207 Mass. 184, 190, 93 N. E. 590,34 L. R. A. (N. S.) 261;Proctor v. Dillon, 235 Mass. 538, 540, 129 N. E. 265. It is fairer to the court and to the opponent to state the grounds upon which such a motion is based. See United States v. Nixon, 235 U. S. 231, 236, 35 S. Ct. 49, 59 L. Ed. 207. It is also for the public interest and for the prevention of needless delays that such ground be stated. It tends to make the trial a genuine contest on the real merits of the case and to promote careful preparation before the trial rather than ingenious afterthoughts.

The record in the case at bar is bare of anything to show compliance with said rule 28 as amended. There was no request for a ruling in favor of the defendant on all the evidence. Under a rule of that tenor a party can put himself in position to argue that a...