In re Freedman

• Decision Date: 08 November 1915
• Parties: In re FREEDMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

222 Mass. 179

110 N.E. 161

In re FREEDMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 8, 1915.

Petition by Henry Freedman to prove the truth of exceptions taken in the superior court. Case referred to a commissioner, who reported to the full bench. Motion to add certain matters to the bill denied.

E. C. Stone, of Boston, for petitioner.

David Stoneman, of Boston, for defendants.

RUGG, C. J.

This is a petition to establish the truth of exceptions after disallowance by the judge of the superior court. It was referred to a commissioner, whose report establishes the truth of the exceptions set forth in the bill annexed to the petition. On motion, by consent of parties, it was recommitted to the commissioner in order that details might be added to show the setting in which the exceptions were taken and thus make them clearer. The supplemental report of the commissioner states that in the former report ‘all matters in dispute upon the petition to prove the bill of exceptions' were covered. By agreement of counsel, however, an exhibit was added to the exceptions. The supplemental report then proceeds as follows:

‘There are matters still in dispute between them [the counsel]; each party wishing to make additions to the bill to which the other does not agree. As described by counsel, they seem to be substantial amendments. * * * Accordingly, I have declined to hear the parties upon them.’

This means that the additions desired to the bill of exceptions are more than the alteration of details or correction of verbal mistakes, or the insertion of unessential matters whose omission may be attributable to inadvertence. What is desired is the adjunction of substantial facts. The counsel for the party who prevailed in the superior court now moves ‘that the case either be recommitted to the commissioner with instructions * * * to allow such further amendments as justice may require, or that the matter be referred to the said justice of the superior court for the same purpose or for such other action * * * as may seem meet and proper.’ The motion must be denied.

In a proceeding like this, the only matter before the court is the determination of the question whether the bill of exceptions presented to the judge and by him disallowed, was true in whole or in any separable part. While minor deficiencies may be made complete and comparatively insignificant errors rectified, there can be no material modification of the bill as presented. It must either be allowed or disallowed in substantially that form. Morse v. Woodworth, 155 Mass. 233, 27 N. E. 1010,29 N. E. 525;Dorr v. Schenck, 187 Mass. 542, 73 N. E. 532.

If the bill of exceptions as filed, although setting out exceptions actually taken, contains irrelevant and objectionable evidence of such a character as to obscure the questions of law raised, or is of wholly unnecessary bulk, or presents a picture changed in color by the insertion of some evidence and the omission of other evidence, then it is not a true bill of exceptions and ought to be disallowed. A blending of exceptions with a mass of extraneous matter tending to give an unnatural complexion to the case is not a true bill and should not be established. Horan,...