Loud v. Brigham

• Decision Date: 28 February 1891
• Citation: 26 N.E. 1004,154 Mass. 107
• Parties: LOUD v. BRIGHAM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 107

26 N.E. 1004

LOUD

v.BRIGHAM.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 28, 1891.

Exceptions from superior court, Middlesex county; JOHN W. HAMMOND, Judge.

E.F. Johnson, for petitioner.

Kent & Dewey, for respondent.

FIELD, C.J.

This is a petition for partition, originally brought in the probate court, from which it was removed to the superior court pursuant to Pub.St. c. 178, § 46. The petition was tried by the superior court without a jury, and the court found “that the petitioner is entitled to have partition as prayed for in her amended petition as to all the land described in said amended petition.” Exceptions were taken to the rulings of the court at the trial, which have been allowed. These exceptions were entered upon the docket of the full court, and the question arose whether they had not been prematurely entered, and at the suggestion of the court this question has been argued by counsel. The finding in this case is interlocutory, and it does not appear that the interlocutory judgment has been entered, (Pub.St. c. 178, § 19;) but there seems to be no reason why this should not be done, unless the pending of these exceptions is a reason. It is alleged in the petition that the real estate cannot be advantageously divided, and the prayer is that the commissioners to be appointed may make sale and conveyance of it, and may distribute and pay over the proceeds in such manner as to make the partition just and equal. Pub.St. c. 178, § 65. The petitioner contends that if these exceptions cannot be entered and heard until after commissioners have been appointed, and they have made partition or sale, and have made their report, and this report has been confirmed by the court, injustice will be done, not only because, if the exceptions are sustained, all the proceedings of the commissioners will be void, but because the commissioners cannot properly make sale of the real estate if it is found that it cannot be advantageously divided unless they can make a good title, and it cannot be known whether they can make a good title until after these exceptions have been heard and determined. The statutory provisions relating to exceptions are Pub.St. c. 153, §§ 8-15. Section 15, Id., provides that the papers relating to a question of law arising upon appeal, by bill of exceptions, reserved case, or otherwise, shall be prepared by the clerk of the court, and shall thereupon “be transmitted to and entered in the law docket of the supreme judicial court for the proper county as soon as may be after such question of law is reserved and duly made a matter of record in the court where the action is pending; but the entry thereof shall not transfer the case, but only the question to be determined.” In Boyce v. Wheeler, 133 Mass. 554, it is said in the opinion: “The rule of law is well settled that in cases pending in the superior court questions of law arising therein cannot be entered and heard in this court upon appeal or exceptions until after final judgment in the superior court. Until such final judgment, this court has no jurisdiction to hear and determine the questions of law.” It is plain, however, that this statement is not literally true. In the great majority of cases in which exceptions are taken in the superior court they are heard by this court before final judgment has been entered in the superior court. Where exceptions are taken at the trial of questions of fact the statutes provide that no judgment shall be entered “unless the exceptions are adjudged immaterial, frivolous, or intended for delay.” Pub.St. c. 153, § 11. See chapter 150, § 15. The meaning of the clause cited from the opinion in Boyce v. Wheeler is shown by subsequent clauses in the same opinion. It is there said: “There has been no final judgment in the case, and it is not ripe for a final judgment.” “The decision of the court to which exception was taken was an interlocutory decision, and therefore the exceptions in this case have been prematurely entered in this court.” This court has uniformly held that exceptions to interlocutory rulings or orders cannot be entered and heard in this court when by subsequent proceedings in the case in the court where it is pending according to the regular course of proceedings the exceptions may become immaterial. A party may seem to be aggrieved by an interlocutory ruling, and yet, as the cause proceeds to a conclusion, he may, in the court where it is pending, prevail to the full extent of his claim; and it would be useless for this court to hear and decide exceptions before it appeared that the excepting party had been injured by the rulings excepted to, if they were erroneous. This, we think, is the foundation of the rule that exceptions taken in interlocutory proceedings cannot be entered in this court until the case is either finally disposed of in the court in which it is pending, or is in a condition to be finally disposed of there, if the exceptions are overruled. Comins v. Falls Co., 140 Mass. 146, 3 N.E.Rep. 304; Boyce v. Wheeler, ubi supra, and cases there cited; Elliot v. Elliot, 133 Mass. 555;Safford v. Knight, 117 Mass. 281, and cases cited. In Bennett v. Clemence, 3 Allen, 431, the...