In re Graustein

• Decision Date: 02 April 1940
• Citation: 26 N.E.2d 535,305 Mass. 568
• Parties: Petition of GRAUSTEIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

305 Mass. 568

26 N.E.2d 535

Petition of GRAUSTEIN.

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1940.

Petition by William A. Graustein to establish the truth of petitioner's exceptions in the case of Graustein v. Barry. On motion to dismiss the petition.

Petition dismissed.

W. A. Graustein, of Cambridge, pro se.

J. Alex Lane, of Boston, for respondent.

FIELD, Chief Justice.

This is a petition brought by the plaintiff in the case of Graustein v. Barry, which was tried in the Superior Court by a judge sitting without a jury, to establish exceptions of the plaintiff-alleged to have been taken at the trial-disallowed by the trial judge. The defendant in that case has filed a motion to dismiss the petition.

A petition to establish the truth of exceptions is in the nature of an appeal, by a party ‘aggrieved’ by the disallowance of such exceptions, for the purpose of correcting an error committed in the trial court. G. L. (Ter.Ed.) c. 231, § 117. It can be maintained only by ‘a party ‘aggrieved’ by the failure of the presiding justice to allow exceptions which ought to be allowed,' In re O'Connell, petitioner, 174 Mass. 253, 255, 53 N.E. 1001, 1002,54 N.E. 558, that is, ‘when the act or omission of the justice is erroneous.’ In re Meehan, petitioner, 208 Mass. 60, 63, 94 N.E. 393, 395. It does not appear from the petition in this case-even if, in favor of the petitioner, it is assumed that the allegations of the petition are true-that this bill of exceptions should have been allowed in the Superior Court as a whole or in part. As appears from inspection of the bill of exceptions originally filed, it is unnecessarily and unreasonably long because of the unnecessary statement of testimony in the form of questions and answers and the statement of details of evidence that are either unimportant or, so far as material to the presentation of questions of law sought to be raised by the exceptions, could have been summarized adequately in much briefer form. The bill, therefore, does not meet the statutory requirement that the exceptions ‘shall be reduced to writing in a summary manner’-a condition precedent to the allowance of a bill of exceptions-G.L. (Ter.Ed.) c. 231, § 113, and for this reason was rightly disallowed. See Ryder v. Jenkins, 163 Mass. 536, 537, 40 N.E. 848;O'Connell, petitioner, 174 Mass. 253, 256, 53 N.E. 1001,54 N.E. 558;Horan, petitioner, 207 Mass. 256, 257, 258, 93 N.E. 581;Isenbeck v. Burroughs, 217 Mass. 537, 539, 105 N.E. 595;Romana v. Boston Elevated Railway, 218 Mass. 76, 81, 105 N.E. 598, L.R.A.1915A, 510, Ann.Cas.1917A, 893;Corsick v. Boston Elevated Railway, 218 Mass. 144, 145, 105 N.E. 600;Taylor v. Pierce Brother, Ltd., 219 Mass. 187, 188, 106 N.E. 565;Freedman, petitioner, 222 Mass. 179, 181, 110 N.E. 161.

A different conclusion does not follow from the allegations of the petition-even if true-in regard to the conduct of the petitioner in seeking amendments in the Superior Court-which were not allowed-to the bill of exceptions as originally filed. The provision of G.L. (Ter.Ed.) c. 231, § 113, that the ‘excepting party may be allowed to make such amendments to his bill of exceptions as will make it a more accurate statement of the exceptions originally filed by him,’ is to be construed liberally. Dorr v. Schenck, 187 Mass. 542, 544, 73 N.E. 532; See also O'Connell, petitioner, 174 Mass. 253, 256, 53 N.E. 1001,54 N.E. 558;Graustein v. H. P. Hood & Sons, Inc., 293 Mass. 207, 213, 200 N.E. 14. Since the exceptions were disallowed it is unnecessary to consider the extent to which a judge of the trial court may go, in the exercise of a sound judicial discretion, in allowing amendments to a bill of exceptions. See Graustein v. H. P. Hood & Sons, Inc., 293 Mass. 207, 213, 214, 200...