In re Petition of C. F. Hovey Co.

• Decision Date: 25 February 1926
• Citation: 151 N.E. 66,254 Mass. 551
• Parties: Petition of C. F. HOVEY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 551

151 N.E. 66

Petition of C. F. HOVEY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 25, 1926.

Exceptions from Superior Court, Suffolk County; Edward Broadhurst, Judge.

Petition by the C. F. Hovey Company to establish the truth of exceptions. Exceptions established in part, and, as established, overruled.J. H. Baldwin, of Boston, for petitioner.

J. H. Devine, of Boston, for respondent.

RUGG, C. J.

This is a petition to establish the truth of exceptions which were disallowed ‘as not being conformable to the truth.’ The petition has been referred to a commissioner, and the case comes before us on his report.

It is contended that this petition cannot be maintained because the bill of exceptions was not seasonably acted upon by the judge. The facts upon which that contention is predicated are these: The time for allowance of the exceptions would expire in accordance with notice under rule 53 of Superior Court 1923 Rules on February 24, 1925. Before the time had expired, the exceptions had been seasonably presented to the judge at a final conference with counsel for both parties. At this conference the judge said:

‘There is nothing for me to do but to disallow this bill of exceptions. * * * I disallow them now and they are disallowed.’

This was said orally and no certificate of disallowance appears to have been then written and signed by the judge. This occurred after it was supposed that the office of the clerk of the court was closed and motion was prepared by counsel for the excepting party and allowed by the judge extending the time to and including February 25, in order that the judge might formally enter the certificate of disallowance with the clerk. The disallowance was not made until February 27. This was called to the attention of the judge, who, on March 4, caused to be entered on the docket this:

‘Ordered-as of Feb. 25, 1925, that the time for allowance of defendant's exceptions be extended to February 27, 1925, inclusive.’

This order was ineffective. A valid order for extension of time for the allowance of exceptions must be made before time theretofore allowed has expired. Barnard Manuf. Co. v. Eugen C. Andres Co., 125 N. E. 170, 234 Mass. 148, 152.

The allowance or disallowance of exceptions must be made by a certificate in writing signed by the judge. The oral disallowance of February 24 or February 25 was not the kind of disallowance contemplated by the law.

The excepting party, however, had done all that he could do to secure action by the judge upon his exceptions within the time for allowance as extended. Manifestly he could not control the conduct of the judge. It is provided by G. L. c. 231, § 117:

‘If the presiding justice * * * disallows or fails to sign and return the exceptions * * * and either party is aggrieved thereby, the truth of the exceptions presented may be established before the full court upon petition. * * *’

This language makes precise provision for the case where the judge does not allow the exceptions within the required time and the excepting party is not in default in calling the exceptions to the attention of the judge and endeavoring to secure their allowance by him. In the case at bar the counsel for the excepting party appears to have been diligent to securethe allowance of his exceptions, but the judge failed to sign and return them within the time limited by law. The excepting party, therefore, was entitled to invoke the extraordinary relief of a petition to the full court. Within twenty days after the expiration of the time, as extended, for the allowance of his exceptions, the excepting party filed in the full court a petition to establish the truth of the exceptions. It is not questioned that in other respects there was compliance with the provisions of rule 6 of the rules regulating practice before the full court. The excepting party, petitioner here, has conformed to the requirements of the statutes (G. L. c. 231, §§ 114, 117), and of the rules of court made pursuant thereto, and is entitled to present his petition. See Borrowscale v. Bosworth, 98 Mass. 34, 38;Browne v. Hale, 127 Mass. 158, 161.

Two exceptions were alleged in the bill of exceptions as filed. One of these exceptions related to the exclusion of a question put to an employee of the petitioner. The exception stated, after narrating a colloquy in which the remark of the judge to the effect that the witness already had testified in direct and cross-examination all he could ‘remember about what his duties were’ went unchallenged, that the form of the question was, ‘What his instructions were when he was instructed as to his duties.’ The commissioner finds that the form of the excluded question in truth was, ‘What were you instructed to do when you went there?’ These findings require the conclusion that the exception was stated in the bill with substantial accuracy.

The other alleged exception relating to a matter arising on a motion to set aside the verdict is found by the commissioner not to have been saved. It need not be...