In re Thorndike 

• Decision Date: 06 January 1926
• Citation: 254 Mass. 256,150 N.E. 296
• Parties: Petition of THORNDIKE (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

254 Mass. 256

150 N.E. 296

Petition of THORNDIKE (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 6, 1926.

Petitions by Caroline Thorndike to establish truth of exceptions. Petitions dismissed.

See, also, 252 Mass. 154, 147 N. E. 672.

Caroline Thorndike, pro se.

R. Spring, of Boston, for respondent.

RUGG, C. J.

These are two petitions to establish the truth of exceptions alleged to have been saved respecting proceedings in an action at law wherein the petitioner was plaintiff and William G. Rantoul defendant.

The petitions with accompanying papers are exceedingly verbose and contain much irrelevant matter. The questions whether on that ground they ought to be dismissed is not considered. See Isenbeck v. Burroughs, 217 Mass. 537, 105 N. E. 595;Corsick v. Boston Elevated Railway, 218 Mass, 144, 105 N. E. 600;Romana v. Boston Elevated Railway, 218 Mass. 76, 81, 105 N. E. 598, L. R. A. 1915A, 510, Ann. Cas. 1917A, 893;John B. Frey Co., Inc., v. S. Silk, Inc., 245 Mass. 534, 537, 140 N. E. 259. The petitions are considered on their merits notwithstanding these defects, but this is not to be regarded as a precedent.

Before stating the substance of these petitions and in order to understand the legal situation respecting them, the history of that action is pertinent so far as revealed by decisions of this court.

The first trial of the case to a jury resulted in a mistrial. The allegation of the petitioner is that there was a verdict in her favor and that the verdict was set aside. No question of law respecting that trial came to this court. There was a second jury trial, wherein a verdict was rendered for the defendant. The petitioner on February 16, 1923, filed a petition to establish exceptions alleged to have been saved by her at that trial. That petition was dismissed on March 27, 1923. The decision is reported in 244 Mass. 429, 139 N. E. 208. That ended the litigation touching all questions of law raised or alleged to have been raised up to that time.

On January 31, 1925, the petitioner filed in this court a petition to establish exceptions alleged to have been saved by her in the same action respecting a motion for a new trial. The allegations of that petition in brief were that, after the dismissal of the earlier petition to establish exceptions, a motion for a new trial on a question of law was filed; that that motion was denied and to that denial she excepted and seasonably on June 16, 1923, filed a bill of exceptions; that said bill of exceptions was allowed on June 22, 1923; that said allowance was revoked on November 24, 1923, the exceptions not then having been entered in this court, and time for the allowance of said exceptions was extended in order to enable the ‘petitioner to file an amended ar substitute bill’; that the petitioner excepted to such revocation and filed bill of exceptions on this point on December 14, 1923; that with respect to this last bill of exceptions the entry was made on the docket of the superior court on June 3, 1924, ‘Dismissal of said bill of exceptions filed December 14, 1923, to the revocation of November 24, 1923, of the allowance on June 22, 1923, of plaintiff's bill of exceptions filed June 16, 1923, the said entry being under said rule 53’ of the superior court; that two motions having been filed in the meantime to correct docket entries, the court overruled the two motions to correct docket entries and disallowed said bill of exceptions. Apparently the prayer of that petition and the statement of grievances relate to the bill of exceptions filed June 16, 1923, allowed June 22, 1923, the allowance of which was revoked on November 24, 1924, and finally disallowed on January 6, 1925. That petition to establish exceptions was dismissed on April 17, 1925. Thorndike, Petitioner, 252 Mass. 154, 147 N. E. 672, where the reasons are stated.

The first of the present petitions was filed on April 25, 1925. It recites in the main the facts set forth in the petition to establish the truth of exceptions filed on January 31, 1925, and dealt with in 252 Mass. 154, 147 N. E. 672. It further specifies the denial of the two motions to correct docket entries and the reasons therefor, and the denial of the petitioner's motion to amend her bill of exceptions and the disallowance of her bill of exceptions filed and allowed in June, 1923 (the allowance of which had been revoked on November 24, 1923). This present petition, although alleging that the actions of the judge by which she is aggrieved took place on January 6, 1925 (as did the petition filed on January 31, 1925), further alleges that she filed ‘an appeal to said order overruling docket entries, all according to law, and a statement and a bill of exceptions thereto, having caused the time for filing exceptions to be extended to and including February 3, 1925, in the usual way and according to law,’ and that she ‘filed a motion to amend said bill of exceptions within the time so extended.’ The grievance alleged in this petition is that the judge did not pass upon and either allow or disallow said exceptions within the three months fixed under rule 53 of the Superior Court Rules. That three months period from the context appears to have begun not later than February 3, 1925.

On October 6, 1925, the petitioner filed the second of the two present pendings petitions. This second petition contains the same historical recitals concerning the litigation as the one filed January 31, 1925, and the one filed on April 25, 1925. It further specifies as to the exceptions filed on December 14, 1923, to the revocation made on November 24, 1923, of the allowance on June 22, 1923, of her exceptions, that the time for hearing on same was duly extended until June 1, 1924, and that because on that date a docket entry of dismissal had been made respecting said exceptions, the judge wrongly refused to consider said bill of exceptions and amendments thereto and substitutes therefor, and refused to correct said docket entry, with allegations as to other rulings and matters touching the same.

The grievances of the petitioner as set forth in each of these petitions, as well as in the one described in 252 Mass. 154, 147 N. E. 672, relate to the denial of her motion for a new trial and matters connected therewith.

[1][2] If she was harmed by any rulings of law made on her motion for a new trial not susceptible of being raised at the original trial, she had a right to reduce those exceptions ‘to writing in a summary manner’ and file them within the time allowed by law. G. L. c. 231, § 113. Nevertheless, it is true that under our practice it is rarely that as matter of right any question of law can be raised on a motion for a new trial. The disposition of such motions commonly rests in sound judicial discretion. Loveland v....