In re Carver

• Decision Date: 19 May 1916
• Parties: In re CARVER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 169

112 N.E. 877

In re CARVER.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1916.

Exceptions from Superior Court, Suffolk County; Richard W. Irwin, Judge.

Petition by the Bar Association of the City of Boston, alleging misconduct on the part of Samuel Carver, an attorney at law, and asking for his disbarment. Order of disbarment entered, and respondent excepts and appeals. Exceptions and appeal dismissed, and the order of disbarment to stand.

The certificate of the trial judge to exceptions on rulings requested by the respondent at the hearing on his motion for a new trial was to the effect that, if any of the exceptions were open to the respondent, they were thereby allowed.

Geo. D. Burrage, of Boston, for prosecutor.

Samuel Carver, of Boston, pro se.

DE COURCY, J.

The Bar Association of the City of Boston on January 29, 1915, filed in the superior court a petition alleging misconduct on the part of the respondent, an attorney at law, and asking for his disbarment. A hearing was had before a judge of that court on June 21 and 22, at which the respondent was represented by counsel, and testified as a witness. No exceptions were taken, and no requests for rulings were made, during the trial or at its conclusion. On July 1, 1915, the judge filed a memorandum of findings of fact and made an order of disbarment.

1. The bill of exceptions filed January 19, 1916, and the one originally filed August 12, 1915, should have been disallowed. ‘No exception shall be allowed by the presiding justice,unless the same be alleged and saved at the time when the opinion, ruling, direction or judgment excepted to is given.’ Rules of the Superior Court, 45; R. L. c. 173, § 106; Graves v. Hicks, 194 Mass. 524, 80 N. E. 605.

2. An appeal from the order of disbarment was presented for filing on November 17, 1915. The clerk properly declined to enter it, as the time allowed for filing an appeal had long expired. Rule 44 of the Superior Court.

3. A motion for a new trial was filed October 18, 1915, and was denied January 19, 1916. On February 10, 1916, the respondent presented for filing an appeal therefrom. As this was not within the time allowed by rule 44, it was not entered, and is not before us. And see Boston Bar Ass'n v. Scott, 209 Mass. 200, 95 N. E. 402.

Exceptions also were filed February 1, 1916, based on the denial by the judge of certain rulings requested by the respondent at the hearing on his motion for a new trial. Under our system a question of law that was, or that might have been, raised at the trial, cannot be raised upon a motion to grant a new trial. The exceptions ‘upon a motion for a new trial’ provided for by R. L. c. 173, § 106, are to rulings on questions arising for the first time at the hearing on that motion. Loveland v. Rand, 200 Mass. 142, 85 N. E. 948. As we construe the certificate of the trial judge, he did not allow the exceptions, but merely certified that the bill of exceptions truthfully set out the facts, if as matter of law the respondent was entitled to exceptions.

4. The respondent filed a motion in arrest of judgment October 18, 1915, more than three months after the order of disbarment was made. Aside from the fact that it was filed too late (see Dean v. Ross, 178 Mass. 397, 60 N. E. 119), his claim of appeal from the denial of the motion was not presented within the time allowed, and was not entered; and, further, there is no merit in the point sought to be raised by the Bill of Exceptions filed thereon. See R. L. c. 173, § 118; chapter 220, § 38.

[7] Even assuming that the evidence and findings of fact were properly before us, we are of opinion that the order of disbarment was justified, and that the respondent has not been deprived of his legal rights in...