in re Horan

• Decision Date: 04 January 1911
• Citation: 207 Mass. 256,93 N.E. 581
• Parties: In re HORAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

207 Mass. 256

93 N.E. 581

In re HORAN.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1911

COUNSEL

Lee M. Friedman and Morse & Friedman, for petitioner.

James E. McConnell, for libelant.

OPINION

KNOWLTON C.J.

This is a petition to prove a bill of exceptions which was disallowed as not conformable to the truth. It appears by the commissioner's report that there was but one exception taken at the trial, and that another was afterwards taken to the consideration of certain evidence by the judge, which consideration he disclosed by his memorandum of his findings. Besides these two exceptions, the bill, as filed, set forth another as having been taken at the trial. In his certificate of disallowance the judge said: 'The bill does not make a truthful statement of the case, as the narrative throughout is distorted by the view which the counsel takes of the proper interpretation of the evidence. The only exception claimed at the trial relates to the exclusion of certain testimony of witnesses as to the reputation for truth and veracity and for chastity of the libelee Mrs Horan. No extended statement of the evidence, in my judgment is necessary to a truthful statement of this exception. Counsel for the libelee have desired to insert the substance of all the testimony offered in the case.' The bill of exceptions is very long and the evidence is voluminous, the trial having occupied five days. There is no reason why everything necessary to present properly the question of law involved in the exception to the exclusion of a certain class of testimony, relating to the reputation of a witness, could not have been stated very briefly. The same is true of the facts bearing upon the other exception relative to the consideration by the judge of a certain writing, material to the issue, which was discovered by him upon blotting paper, bound in as one of the interleaves in a hotel register that was put in evidence and taken away by the judge for examination at the close of the trial, he having heard the case under our practice without a jury. This writing had not been discovered by counsel in their examination of the book.

The commissioner has indicated, by erasures and insertions throughout the evidence, what should be admitted and what added to make the report of the testimony an impartial statement of that which was presented at the trial. The report shows that the bill, as filed, was colored by the zeal of counsel to present the case...