In re Poole

• Decision Date: 25 May 1917
• Citation: 116 N.E. 227,227 Mass. 29
• Parties: In re POOLE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 29

116 N.E. 227

In re POOLE.

Supreme Judicial Court of Massachusetts, Plymouth.

May 25, 1917.

Exceptions from Superior Court, Plymouth County; Hugo A. Dubuque, Judge.

Action against Alva P. Poole. There was a finding for plaintiff, and defendant brings exceptions and files a petition to establish the exceptions. Petition for establishment of exceptions allowed, and exceptions sustained.H. F. Parker, of Brockton, for petitioner.

E. A. MacMaster, of Bridgewater, and Coughlan Bros., of Abington, for respondents.

RUGG, C. J.

This is a petition to establish exceptions. The relevant facts are that the case was tried before a judge of the superior court sitting without a jury. Both the plaintiffs and defendant, who is the petitioner, seasonably presented requests for rulings of law. The decision was not rendered at the time of the trial, but later a simple finding for the plaintiffs for a stated sum was filed. The clerk of courts mailed from Plymouth, the county seat, at 5:30 p. m. of Friday, November 5, 1915, a notice of the finding. This was received by the defendant's attorney at Brockton on Saturday, November 6, who immediately wrote the clerk asking for copy of the memorandum of decision, if any, filed by the judge, and of his rulings upon the requests for rulings. This letter was received at the clerk's office on Monday, November 8. No reply was made. On November 10, Wednesday, the defendant's attorney wrote to the clerk in effect that he assumed, having received no answer to his letter of November 6, that no memorandum had been filed and that the plaintiffs' requests for rulings had been granted and those of the defendant denied, and saving exceptions thereto. No memorandum of decision was filed by the judge. The commissioner has found that on Monday, Tuesday and Wednesday, November 8, 9 and 10, the clerk and judge were at Brockton, the court being in session, and that defendant's counsel made no attempt to communicate with the clerk or judge. There is no finding by the commissioner that the defendant's attorney knew this, but we assume in favor of the plaintiff that he did. It is found that he did not know that the papers were in Brockton.

At the time these events occurred, there being no rule of court touching the subject, exception must have been taken within a reasonable time to a ruling made in the absence of counsel in connection with the trial of a case before a judge without a jury. Hurley v. Boston Elevated Railway, 213 Mass. 192, 99 N. E. 1056. What is a reasonable time must depend upon the circumstances. In the case at bar, since the notice of the decision was sent by mail and was received in due course, the time of its receipt must be taken as the starting point. That point of time is indicated by R. L. c. 173, § 106, and St. 1911, c. 212. There is nothing to show that notices were not usually sent. Since a bald notice of decision only was sent, it was proper and doubtless necessary for the defendant's attorney to ascertain whether the judge had made any finding of facts. It might have been that a finding of facts made by the judge would have rendered the exceptions valueless. Since the notice of decision had been sent by mail, and since the residence and office of the defendant's attorney was at a considerable distance from the county seat, this inquiry properly might have been made by mail. Notice of exceptions was given as soon as reply would have been received if one had been made by the clerk in due course of mail. It actually was given on the third secular day after receipt of the notice of decision. In computing this time, since the period is less than a week, the intervening Sunday is excluded. Stevenson v. Donnelly, 221 Mass. 161, 108 N. E. 926. Under these circumstances the exception was saved within a reasonable time. The attorney acted as promptly as was to be expected in view of the course of the mail. If it appeared that he had known that the papers were in Brockton, where he lived, perhaps a different question would be presented. This conclusion is in analogy to the present rule of court. It is provided now by Rule 46 of the Superior Court Common Law Rules in force beginning with January 1, 1916, that exceptions to a ruling made in the absence of counsel in cases tried by a judge without a jury shall be saved by filing in the clerk's office a written statement that exception is taken within three days after the receipt of notice of the adverse ruling. The exceptions are established on the facts found by the commissioner.

The making of a decision in favor of the plaintiffs, without passing upon the defendant's requests for rulings, was a denial of all such requests as were relevant and inconsistent with the decision. Hetherington & Sons v. William Firth Co., 210 Mass. 8, 18, 19, 95 N. E. 961.

The action is by the holder against the indorser to recover the face of a promissory note given on time. One of the requests of the defendant thus denied was that ‘there was no presentment for payment on the proper day either at the residence or place of business of the maker of the note.’ In order to recover of the indorser it was necessary for the plaintiffs to prove that demand of payment was made upon the maker on the day of maturity of the note. It is not contended that the case is within the...