in re Meehan

• Decision Date: 28 February 1911
• Citation: 94 N.E. 393,208 Mass. 60
• Parties: In re MEEHAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 60

94 N.E. 393

In re MEEHAN.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1911

COUNSEL

Whipple Sears & Ogden and Edwin M. Brooks, for petitioner.

Hudson & Nichols, for respondent.

OPINION

KNOWLTON C.J.

This is a petition to establish the truth of a bill of exceptions. The exception to which the petition relates was taken at a trial before a jury on March 8, 1901. The time for filing exceptions was extended, and the bill was filed on April 15 1901. The ruling excepted to was made by Mr. Justice Maynard, and the bill not having been allowed and a hearing being thought necessary, letters passed, at long intervals, between the counsel for the plaintiff who filed the exceptions and the judge, relative to a time and place for the hearing. Various times and places were named by the judge in his letters, in every one of which he indicated a willingness to hear the plaintiff's counsel whenever and wherever the counsel chose to come to him. Seemingly because these times and places did not suit the convenience of counsel, no hearing was had before Mr. Justice Maynard until shortly before his death, which occurred in May, 1906. At this hearing or conference counsel were unable to agree as to the statement of evidence in the bill, and the judge required the plaintiff to furnish a transcript of a certain portion of the stenographic report. This transcript was promptly ordered by the plaintiff, but before a further hearing could be had, Judge Maynard died. After his death there was a hearing or conference before Mr. Justice Fox, at which it was arranged that other portions of the testimony should be procured before the exceptions were passed upon. Afterwards, on October 15, 1908, defendant's counsel prepared a 'bill of exceptions as revised,' which was intended to be a more complete and accurate statement than that in the original bill, and at the same time filed a motion that his bill of exceptions be allowed in the revised form set forth in the draft then filed. This revised bill was not accepted by the clerk for filing, but was handed to Mr. Justice Richardson, before whom the motion for allowance came up for hearing. The motion was denied by Mr. Justice Richardson, who handed down, with his ruling, the following memorandum:

'The verdict in this case was rendered March 8, 1901. The plaintiff's bill of exceptions was filed after extensions of time therefor, on April 15, 1901. Mr. Justice Maynard, who presided at the trial, died in May, 1906. The first effort by the plaintiff to get the exceptions allowed, so far as the record shows, was made to me in October, 1908, after the counsel for the defendant at the trial had left its service. The plaintiff now asks to have his exceptions allowed in a revised form, first presented in October, 1908.

'The ruling of the judge who presided at the trial was that, upon the evidence, the plaintiff was not entitled to recover. Neither the original bill nor the revised form of it contains a copy or statement of all the evidence. A stenographic report of 254 pages of the testimony is presented, but I am not able to say that the bill of exceptions in either form is conformable to the truth, and I deny the motion.'

This revised bill is not before us, and we have no definite knowledge of its contents. There is nothing to show that the judge was wrong in the order denying the motion.

On March 15, 1909, the plaintiff presented the bill of exceptions to Mr. Justice Richardson, who endorsed upon it the following certificate of disallowance: 'Mr. Justice Maynard, who presided at the trial of this case, died on May 28, 1906. This bill of exceptions was first presented to me on March 13, 1909. I am not able to say or find that it is conformable to the truth, and I disallow it.'

The petition before us is to establish the truth of the original bill of exceptions. The commissioner has reported, not only the facts already stated, but facts, and a considerable portion of the evidence, relative to the contents of the bill. From the report it appears that this was not entirely conformable to the truth, and could not properly be allowed in the form in which it was originally presented. On the other hand, it seems to have been presented in good faith, as and for a correct and proper statement of the...