In re Ray

• Decision Date: 28 June 1943
• Citation: 49 N.E.2d 891,314 Mass. 195
• Parties: In re RAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 195

49 N.E.2d 891

In re RAY.

Supreme Judicial Court of Massachusetts, Middlesex.

June 28, 1943.

Petition from Supreme Judicial Court, Middlesex County.

Proceeding on the petition of Charles J. Ray, administrator, to establish exceptions.

Petition dismissed.

Before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.

W. T. Burke, of Boston, for petitioner.

W. P. Thompson, of Boston, for respondents.

QUA, Justice.

The petitioner is the plaintiff in the action. After a verdict in his faovr, but before the entry of judgment, he caused the real estate of the defendant to be attached by special precept. Thereafter one Margaret M. Pierce filed an application alleging that a certain described parcel of land, ‘standing in the name of’ the defendant and included in the attachment, belonged to said Pierce, and that the defendant had no interest therein, and praying that the attachment of said property be dissolved. G.L.(Ter.Ed.) c. 223, § 114, as amended. The exceptions which the petitioner seeks to establish arose out of the hearing on this application for dissolution of attachment.

The bill of exceptions as filed by the plaintiff stated that when the application to dissolve the attachment ‘was presented it was brought to court on an agreed statement of facts, which were as follows.’ Then followed a paragraph of facts such as could constitute ‘an agreed statement of facts' and after this another paragraph in these words, ‘The parties agreed to the above facts and only the following question of law remained to be determined by the court.’ Here was stated the question of law which the plaintiff conceived to be raised upon the ‘agreed statement of facts.’ The truth, as shown by the commissioner's report, was that there was no written agreed statement of facts, but that just before the hearing counsel for both parties ‘had agreed on certain facts material to the case’ in order to eliminate the necessity for calling a witness then in attendance to testify in behalf of Pierce. The hearing, however, was not upon an agreed statement of facts as an agreed statement of facts is commonly understood. The plaintiff called Pierce as a witness and in addition to her testimony put two deeds in evidence. Counsel for the parties made statements of facts and statements that facts had been agreed.

As we interpret the report, these statements were unchallenged and might be found to have been agreed upon. Counsel for Pierce stated other facts which counsel for the plaintiff denied. The assertion in the bill of exceptions that the case ‘was brought to court on an agreed statement of facts, which were as follows:’ was not an accurate statement on the manner in which the case was heard. Moreover, the form of the bill of exceptions was such that, taken in connection with this assertion, an argument might be made with some plausibility that the hearing had been conducted upon a case stated, with the result that this court, upon the argument of the case here, could draw inferences of fact which it could not draw upon a bill of exceptions showing correctly the course of the hearing. G.L.(Ter.Ed.) c. 231, § 126; Frati v. Jennini, 226 Mass. 430, 115 N.E. 746;United States Fidelity & Guaranty Co. v. English Construction Co., 303 Mass. 105, 108, 109, 20 N.E.2d 939. See McNulty v. Boston, 304 Mass. 305, 306, 307, 23 N.E.2d 896;Scaccia v. Boston Elevated Railway, 308 Mass. 310, 32 N.E.2d 253.

When the bill of exceptions was presented to the trial judge for allowance, counsel for Pierce stated that there was no agreed statement of facts, and that the bill did not conform to the truth. Counsel for the plaintiff insisted that there was an agreed statement of facts. The judge stated that at the hearing he had heard testimony and had received deeds in evidence, and that the bill of exceptions did not conform to the truth. He spoke of giving counsel for the plaintiff an opportunity to amend his bill, but upon counsel for the plaintiff insisting that the bill did conform to the truth, the judge stated that he would disallow the bill. Later the judge returned the bill of exceptions to the clerk with the notation thereon that the bill was ‘dismissed,’ as it did not conform to the truth. The word ‘dismissed’ in the judge's order should be construed as meaning disallowed.

The judge was not required to sign a bill of exceptions that stated erroneously the method by which the hearing was conducted and thereby opened up the possibility of arguments in this court along lines that would not have been open if the facts had been correctly stated. Apart from the possible argument that there was a case stated, it would seem that Pierce could reasonably object to a bill that wrongly asserted that she had agreed to all the facts set forth therein. We do not doubt that the bill was prepared in good faith. Counsel may have been misled by the oral understanding that had been reached before the hearing began. It may well be true that Pierce's testimony and documentary evidence by which she was bound, taken with admissions of counsel by which the respective parties were bound, left the case in substantially the same posture for purposes of argument in this court as did the so called ‘agreed statement of facts' inserted in the bill of exceptions, but after considerable study we are not altogether certain that this is true, and we think that the plaintiff had no right to put the burden of any risk in this respect upon Pierce. Bills of exceptions ought not to rest upon an incorrect approach to the facts, especially where the exact effect of the error in all possible aspects may not be foreseen.

Ordinarily a difficulty of this kind would be immediately straightened out at the hearing on the allowance of the bill of exceptions by amending the bill. In this instance both counsel for Pierce and the judge pointed out wherein the bill was defective. The judge then spoke of amendment. But counsel for the plaintiff, instead of seeking to amend, merely insisted that the bill did conform to the truth. It was the plaintiff's bill. The judge could not amend it without the consent of the plaintiff. G.L. (Ter.Ed.) c. 231, § 113; Hector v. Boston Electric Light Co., 161 Mass. 558, 560, 561, 37 N.E. 773,25 L.R.A. 554;Morse v. Woodworth, 155 Mass. 233, 241, 27 N.E. 1010,29 N.E. 525;Thompson v. Dickinson, 159 Mass. 210, 211, 34 N.E. 262. The plaintiff did not consent but insisted upon the bill as it was. This was not a case where part of the bill could be allowed...