in re Keohane

• Decision Date: 22 May 1901
• Citation: 179 Mass. 69,60 N.E. 406
• Parties: In re KEOHANE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 69

60 N.E. 406

In re KEOHANE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1901

COUNSEL

P.J. Doherty and A. E. Burr, for respondent.

OPINION

HOLMES C.J.

This is a petition to prove exceptions. The commissioner to whom the case was referred finds that during the trial the petitioner did not take or save any exceptions. It is certain that no requests for instructions were made in writing before the closing arguments, as required by Rule 48 of the Superior Court, and although we assume on the testimony that the counsel for the petitioner understood that he had what amounted to special leave to present requests later, we do not perceive the implication of such leave in a postponement of discussion of a question raised on evidence to the arguments, or any reason why, if the requests would have been in time, they should not have been presented in writing.

The argument most pressed is that, in a case tried before a judge alone, if the judge bases his finding upon a ruling of law the party aggrieved has the right to except to such ruling and that the judge did that in this case. The judge found for the plaintiff, and on the back of the memorandum of the finding was written 'See Stevens v. Tuite, 104 Mass. 328, for rule in computation of damages, pp. 334, 335.' This is what the defendant relies upon. But the judge in disallowing the bill of exceptions certified that he 'made no specific rulings under Stevens v. Tuite, 104 Mass. 334, 335, which entitle the defendant to an exception,' and explained that the reference to the case was in answer not to the defendant's but to the plaintiff's contention, and was intended to show why he did not give the plaintiff larger damages in accordance with his claim. But the judge found substantial damages, and the defendant had been directing his main defense to the proposition that the plaintiff could recover nominal damages only. The judge therefore ruled by implication that the evidence warranted a finding of substantial damages. It may be urged that the correctness of this implied ruling is open.

But, in our opinion, if a party wishes to save a question of law upon the evidence, he must do so before the trial is over, and cannot raise it for the first time by what may be an afterthought, although it was not so in this case. If a judge should leave a case to a jury upon a wrong ruling, it would be too late to except after a verdict had been returned. The rule is the same when the finding is by the judge. If there has been no preliminary understanding or...