In re Loeb

• Citation: 52 N.E.2d 37,315 Mass. 191
• Parties: In re LOEB.
• Decision Date: 08 December 1943
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 191

52 N.E.2d 37

In re LOEB.

Supreme Judicial Court of Massachusetts, Middlesex.

Dec. 8, 1943.

Disciplinary proceeding by the Lowell Bar Association against Louis G. Loeb, an attorney. From an order suspending respondent from the practice of law for three months, he appeals and excepts thereto.

Appeal dismissed and exceptions overruled.H. W. Cole and C. W. O'Brien, both of Boston, for Louis G. loeb.

R. B. Walsh, of Lowell, for Lowell Bar Ass'n.

A. Z. LeMoine, Asst. Atty. Gen., for the Attorney General.

R. G. Dodge, E. H. Sullivan, and R. B. Heavens, all of Boston, and R. S. Woodbury, of Springfield, amici curiae.

LUMMUS, Justice.

The Lowell Bar Association informed the Superior Court of alleged professional misconduct on the part of the respondent, a member of the bar. Matter of Keenan, 313 Mass. 186, 47 N.E.2d 12. After a hearing, a judge of that court found that the respondent solicited law business by advertising. He made an order suspending the respondent from practice for three months. The respondent excepted to, and also appealed from, ‘the findings and order of the court made and filed on March 9, 1943.’ The transcript of the evidence, which is the same evidence reported in the case of Lowell Bar Association v. Loeb, Mass., 52 N.E.2d 27, is made a part of the bill of exceptions. The respondent contends that the evidence did not warrant the findings, that the subsidiary findings did not warrant the ultimate finding of misconduct and the order of suspension, and that the penalty was too severe. On the other side, it is contended that the penalty was inadequate.

None of these contentions can prevail.

(1) The judge filed on March 9, 1943, what he called ‘findings and order,’ which recited certain facts and ordered suspension as hereinbefore stated. The respondent appealed ‘from the findings and order of the court.’ Disciplinary proceedings are at law, not in equity, and appellate procedure in them ordinarily is governed by the statutes regulating practice in civil actions at law as far as they are applicable. Bar Association of City of Boston v. Casey, 227 Mass. 46, 51, 116 N.E. 541;Matter of Mayberry, 295 Mass. 155, 166, 167, 3 N.E.2d 248, 105 A.L.R. 976;Matter of Keenan, 313 Mass. 186, 204 et seq., 47 N.E.2d 12. The only appeal from the Superior Court known in actions at law is the one provided for by G.L.(Ter.Ed.) c. 231, § 96. Styrnbrough v. Cambridge Savings Bank, 299 Mass. 22, 23, 11 N.E.2d 807. Of the three classes of orders appealable under that section, the only one that might be thought applicable is ‘any order decisive of the case founded upon matter of law apparent on the record.’ For the history of that section, see Keljikian v. Star Brewing Co., 303 Mass. 53, 20 N.E.2d 465. It is settled that such ‘findings and order’ as were made and filed in this case do not, in a proceeding at law, become part of the ‘record’ within that section. Cressey v. Cressey, 213 Mass. 191, 99 N.E. 972; Powdrell v. DuBois, 274 Mass. 106, 174 N.E. 220;Check v. Kaplan, 280 Mass. 170, 174, 182 N.E. 305;Yoffa v. Shaw, 299 Mass. 516, 13 N.E.2d 378;Flint v. Wilmington, 310 Mass. 66, 36 N.E.2d 905;Watts v. Watts, 312 Mass. 442, 449, 450, 45 N.E.2d 273;Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 51 N.E.2d 308. The ‘findings and order’ were not made part of the bill of exceptions. If they had been they would not have become part of the record for the purpose of appeal (see Tyndale v. Stanwood, 186 Mass. 59, 61, 62, 71 N.E. 83), for when the ‘order decisive of the case’ was made and when the appeal was claimed, the bill of exceptions had not been allowed, and consequently had not become part of the record for any purpose. The appeal must therefore be dismissed.

(2) The only exception argued by the respondent is one taken to ‘the findings and order of the court.’ We pass by the fact that the findings and order were not expressly made a part of the bill of exceptions, and treat the case as though they were. Where the subsidiary facts are conceded or otherwise established, and all that remains is to draw the ultimate inference of fact and to apply the law, an exception to the general or ultimate finding opens the question whether it was warranted on the subsidiary facts. Leshefsky v. American Employers' Ins. Co., 293 Mass. 164, 166, 167, 199 N.E. 395, 103 A.L.R. 1388;Gaw v. Hew Construction Co., 300 Mass. 250, 252, 15 N.E.2d 225;Federal National Bank of Boston v. O'Connell, 305 Mass. 559, 564, 565, 26 N.E.2d 539;Sreda v. Kessel, 310 Mass. 588, 589, 590, 38 N.E.2d 932. That rule does not apply to the question whether the evidence warranted the findings in the present case. Some of the subsidiary facts were disputed. Apart from the exceptional rule of the Leshefsky case, an exception to a finding does not present the question whether it was warranted by the evidence. Stowell v. H. P. Hood & Sons, Inc., 288 Mass. 555, 193 N.E. 234;Forbes v. Gordon & Gerber, Inc., 298 Mass. 91, 94, 95, 9 N.E.2d 416;Ross v. Colonial Provision Co., Inc., 299 Mass. 39, 41, 12 N.E.2d 98;Baker v. Davis, 299 Mass. 345, 346, 349, 12 N.E.2d 816;Looby v. Looby, 303 Mass. 391, 392, 21 N.E.2d 945;Carney v. Cold Spring Brewing Co., 304 Mass. 392, 396, 23 N.E.2d 1000;Federal National Bank of Boston v. O'Connell, 305 Mass. 559, 565, 26 N.E.2d 539;Town of Lakeville v. Cambridge, 307 Mass. 433, 435, 30 N.E.2d 266;Sreda v. Kessel, 310 Mass. 588, 589, 38 N.E.2d 932;James B. Rendle Co. v. Conley & Daggett, Inc., 313 Mass. 712, 48 N.E.2d 676; Langdoc v. Gevaert Co. of America, 315 Mass. 8, 51 N.E.2d 780. The exceptions to the findings, so far as it attacks the sufficiency of the evidence to support them, must be overruled.

(3) The respondent contends that the same exception opens the question whether the finding of professional misconduct was warranted in law upon the subsidiary findings recited in the ‘findings and order.’ It may be questioned whether this contention is open upon an exception so general in its terms. An exception must call to the attention of the judge the particular error alleged, in order that if possible he may correct it. In this case, if the point had been called to the attention of the judge, he might have made further express findings of fact. Anderson v. Beacon Oil Co., 281 Mass. 108, 183 N.E. 152;Trustees of Boston University v. Commonwealth, 286 Mass. 57, 65, 190 N.E. 29;Mitchell v. Lynn Fire & Police Notification Co., Inc., 292 Mass. 165, 168, 197 N.E. 456;Sylvia v. New York, N. H. & H. R. Co., 296 Mass. 157, 164, 6 N.E.2d 359;Alfred J. Silberstein, Inc., v. Nash, 298 Mass. 170, 174, 10 N.E.2d 65;Tucker v. Ryan, 298 Mass. 282, 284, 10 N.E.2d 73;O'Connor v. Benson Coal Co., 301 Mass. 145, 150, 151, 16 N.E.2d 636;Beebe v. Randall, 304 Mass. 207, 209, 23 N.E.2d 142;Kolasinski v. Paczkowski, 307 Mass. 73, 76, 29 N.E.2d 747;Kurland v. Massachusetts Amusement Corp., 307 Mass. 131, 143, 29 N.E.2d 749;McKay v. Polep, 311 Mass. 567, 571, 42 N.E.2d 538.

But let us assume, without deciding, that the contention is open. The case is not like an appeal in equity with a report of material facts made by the judge pursuant to the duty imposed on him by G.L. (Ter.Ed.) c. 214, § 23, or c. 215, § 11. In such a case the facts reported are taken to be all the facts upon which the decree was based, and if they do not support the decree it must be reversed, unless the evidence reported shows that it was nevertheless right. Topor v. Topor, 287 Mass. 473, 476, 192 N.E. 52;Birnbaum v. Pamoukis, 301 Mass. 559, 562, 17 N.E.2d 885;Viens v. Viens, 302 Mass. 366, 367, 19 N.E.2d 306;Castle v. Wightman, 303 Mass. 74, 76, 20 N.E.2d 436;Sullivan v. Quinlivan, 308 Mass. 339, 340, 341, 32 N.E.2d 209;Sidlow v. Gosselin, 310 Mass. 395, 397, 38 N.E.2d 665;Wiley v. Fuller, 310 Mass. 597, 599, 39 N.E.2d 418;Bernhardt v. Atlantic Finance Corp., 311 Mass. 183, 185, 40 N.E.2d 713;Hinckley v. Barnstable, 311 Mass. 600, 602, 42 N.E.2d 581;Colby v. Callahan, 311 Mass. 727, 728, 42 N.E.2d 801.

This is a proceeding at law. On the law side of the court a judge cannot be required to make any express findings of fact.¹John Hetherington & Sons, Ltd., v. William Firth Co., 210 Mass. 8, 17-19, 95 N.E. 961;Castano v. Leone, 278 Mass. 429, 431, 180 N.E. 312;Ashapa v. Reed, 280 Mass. 514, 182 N.E. 859;Graustein v. Dolan, 282 Mass. 579, 583, 185 N.E. 489;Memishian v. Phipps, 311 Mass. 521, 523, 42 N.E.2d 277;Codman v. Beane, 312 Mass. 570, 574, 45 N.E.2d 948. Compare Perry v. Hanover, 314 Mass. 167, 172, 50 N.E.2d 41. It is discretionary with him whether to make any express findings or not, and whether to state all the facts found or only part of them. His findings are not to be taken as including all the material facts unless they purport to do so. Unless they purport to be a complete statement of the case, the rule still applies that the decision or decree imports a finding of every fact necessary to sustain it not expressly negatived. Birnbaum v. Pamoukis, 301 Mass. 559, 561, 17 N.E.2d 885;Povey v. Colonial Beacon Oil Co., 294 Mass. 86, 90, 200 N.E. 891;Wilkins v. Berkeley Realty Corp., 311 Mass. 148, 151, 40 N.E.2d 263;Watkins v. Briggs, 314 Mass. 282, 284, 285, 50 N.E.2d 64.

In this case, near the end of his ‘findings and order,’ the judge found expressly that the business of making out simple income tax returns was the practice of law, and that the respondent as proprietor solicited patronage for that business by advertising. That finding was not warranted by the evidence and was erroneous as matter of law. Lowell Bar Association v. Loeb, Mass., 52 N.E.2d 27. If that finding is the sole foundation for the order of suspension, when that foundation falls the order must fall with it. If that finding was the sole foundation for the order of suspension, we assume without deciding that the general exception taken would raise the question and would have to be sustained. Leshefsky v. American Employers' Ins. Co., 293 Mass. 164, 166, 167, 199 N.E. 395, 103 A.L.R....