In re Reynolds

• Decision Date: 16 October 1925
• Citation: 149 N.E. 154,253 Mass. 427
• Parties: Petition of REYNOLDS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

253 Mass. 427

149 N.E. 154

Petition of REYNOLDS.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 16, 1925.

Petition by Jay B. Reynolds to establish exceptions disallowed by judge of superior court. Petition dismissed.

F. J. Lawler, of Greenfield, for petitioner.

C. Fairhurst, of Greenfield, for respondent.

RUGG, C. J.

This is a petition to establish exceptions disallowed by a judge of the superior court because in his opinion not conformable to the truth. A motion was filed to dismiss the petition on the grounds (1) that the copy of the petition delivered to the adverse party or his attorney of record was not true and accurate and (2) that copies of the original bills of exceptions annexed to the petition were not true and accurate.

The copy of the petition delivered under rule 6 of the rules regulating practice before the full court was in the same words as the original petition on file, save that in one instance the word ‘of’ was typed instead of the word ‘after’ in the original petition. Manifestly this was a clerical error of no consequence. Nugent v. Greenfield Life Association, 172 Mass. 278, 283, 52 N. E. 440. Proceedings for the establishment of exceptions are strictissimi juris; but they do not require finical and photographic preciseness. The differences between the copies of the exceptions annexed to the petition and those annexed to the copy of the petition delivered under rule 6 also were purely clerical and immaterial and do not reach to any matter of substance. They need not be stated in detail. Both these grounds are invalid. There is nothing inconsistent with this in Ryder v. Jenkins, 163 Mass. 536, 40 N. E. 848.

As a general rule no inquiry is made into the merits of exceptions on a petition to establish them; but where it appears on the face of the petition that plainly there is no real question of law in the alleged exceptions and that they are immaterial and do not afford proper subject for judicial inquiry, then the petition ought to be dismissed. Bishop, Petitioner, 208 Mass. 405, 407, 94 N. E. 479;Koch, Petitioner, 225 Mass. 148, 114 N. E. 79;Barnett, Petitioner, 240 Mass. 228, 230, 133 N. E. 111.

The cause of action on which the present petition is founded was replevin. The case turned on the issue whether the parties made an express contract for the repair of an automobile for a specified price, or whether only an estimate of the cost of such repairs was given. The trial was before the judge without a jury. It was stated at the bar that the bill of exceptions annexed to the petition is based on the...