In re O'Connell

• Decision Date: 02 June 1899
• Citation: 174 Mass. 253,53 N.E. 1001
• Parties: In re O'CONNELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 253

53 N.E. 1001

In re O'CONNELL.

Supreme Judicial Court of Massachusetts, Middlesex.

June 2, 1899.

Petition by Bernard D. O'Connell to prove exceptions upon refusal of court to allow exceptions. Petition dismissed.

B.D. O'Connell, pro se.

B.B. Johnson, for respondent.

KNOWLTON, J.

This is a petition to prove two bills of exceptions taken in the course of proceedings for the removal of the petitioner from the bar. The first bill sets forth certain exceptions to preliminary orders, and the second includes also numerous exceptions taken at the hearing upon the evidence. Pursuant to the rule of the court a commissioner has been appointed, who has made his report. In reference to the second bill of exceptions the report sets forth, in paragraphs numbered from 1 to 19, inclusive, many particulars in which the bill is not conformable to the truth, and in reference to the first bill of exceptions it sets forth in like manner, in three paragraphs, particulars in which that is not conformable to the truth; and the report ends by stating, in reference to both bills, “that the failure to amend them so that they would conform to the truth in these particulars was the petitioner's own fault in refusing to comply with the reasonable suggestions of the court.” Much of the second bill of exceptions is made up of matters which are immaterial, as they relate to charges against the petitioner on which no order was made. The material errors and omissions stated in the report leave only one or two unimportant exceptions correctly stated, which are distinct and separate from the others. The case presents these important questions of practice: When a bill of exceptions is found to be full of errors, and generally untrue, and when the excepting party declines to amend it in accordance with proper suggestions of the judge, so that the judge has good reason to believe, and does believe, that he does not desire or intend to make his bill of exceptions conformable to the truth, is it the duty of the judge, if it is possible to find in the bill any exception correctly stated, to search it out, and allow it separately? In such a case, if the judge certifies a general disallowance of the exceptions, has the excepting party a right, on a petition to prove exceptions, to have the single exception separated from the rest of the bill, and afterwards considered by the court? Pub.St. c. 153, § 8, provides that exceptions shall be “reduced to writing in a summary mode,” and, “being examined and found conformable to the truth, shall be allowed by the presiding judge.” By section 13 of the same chapter a party aggrieved by the disallowance or failure to sign and return the exceptions may establish the truth of them before the supreme judicial court, and the same proceedings shall then be had as if they had been allowed in the usual way. No one but a party “aggrieved” by the failure of the presiding justice to allow exceptions which ought to be allowed has any standing to have them proved upon a petition to the supreme judicial court. Unless the bill of exceptions is in such a form that it is the duty of the judge to whom it is presented to allow it as a whole, or to separate certain exceptions which are correctly stated, and to allow them and disallow the others, there is no case which calls for favorable action upon a petition to prove exceptions. Accordingly, it was held in Ryder v. Jenkins, 163 Mass. 536, 40 N.E. 848, that the presiding justice rightly disallowed a bill of exceptionswhich, though conformable to the truth, contained a full report of all the evidence in the case by question and answer, at great length, and a petition to prove the exceptions in this court was dismissed. The right of the excepting party to have his exceptions allowed by the presiding justice, or proved upon a petition to this court, rests upon the statute, with whose provisions he must comply. One of these provisions is that the exceptions shall be “reduced to writing in a summary mode.” The case last cited was an instance of a failure to comply with this provision. Another is that the exceptions shall be conformable to the truth, and it is only when their truth is established that they can be proved on a petition. Absolute accuracy in all cases in reducing exceptions to writing is not to be expected. Accordingly, great liberality is shown in permitting amendments to bills of exceptions before they are allowed. Where a party has in good faith attempted to comply with the statute in making his statement conformable to the truth, he should have ample opportunity before the judge to supply omissions and correct errors. Innocent omissions or errors in some parts of his bill should not deprive him of his right to waive exceptions which are not correctly stated, and to insist upon the others. This doctrine is applied in hearings upon petitions to prove exceptions as well as in hearings before the presiding justice on the allowance of exceptions. It is assumed in these cases that there has been an honest purpose, and an attempt to make the bill of exceptions conformable to the truth, and that the errors and omissions are unintentional. In Morse v. Woodworth, 155 Mass. 233-241,27 N.E. 1011,-a case which goes to the extreme of liberality in favor of petitioners to prove exceptions,-is this language: “If such errors are found which may fairly be attributed to inadvertence, and which do not essentially change the exception intended to be taken, or if there is an omission of details which can readily be supplied, and which ought to be added in order properly to present the exception relied upon, it is within the power of the court, under a reasonable construction of the statute referred to, to suggest such needed amendments to the excepting party, and, if he adopts them, to allow him the benefit of his exceptions as thus amended.” Then follow qualifications and explanations which show that in this case the excepting party was supposed to have intended to present his exceptions accurately, and it was held that the objection on account of his inaccuracy was not so serious as to deprive him of his exceptions. But, if the errors in a bill of exceptions are such as to indicate that it was not intended to be conformable to the truth, and especially if the excepting party at the hearing before the presiding justice declines to adopt proposed amendments which would make the exceptions conformable to the truth, this...