Morse v. Woodworth

• Decision Date: 26 June 1891
• Citation: 155 Mass. 233,27 N.E. 1010
• Parties: MORSE v. WOODWORTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 233
27 N.E. 1010

MORSE
v.
WOODWORTH.

Supreme Judicial Court of Massachusetts, Middlesex.

June 26, 1891.

Exceptions from superior court, Middlesex county.

Pub.St.Mass. c. 153, § 13, provides that if the trial justice disallows or fails to sign and return the exceptions filed by a party, or alters any statement therein, and either party is aggrieved, the truth of the exceptions presented may be established before the supreme judicial court on petition setting forth the grievance, and, the truth thereof being established, the exceptions shall be heard, and the same proceedings had as if they had been signed and brought up to said court with the petition.

[155 Mass. 240]Marshall, Hamblet & Burke, for petitioner.

George F. Richardson, for Morse.

C. ALLEN, J.

This is a petition by the defendant in the action of Morse v. Woodworth to prove a bill of exceptions. At the trial of the action in the superior court a verdict was rendered for the plaintiff, and the defendant duly filed a bill of exceptions, which was disallowed by the presiding judge. The defendant, being aggrieved, seeks to establish the truth of the exceptions presented, and he is allowed to do so, under Pub.St. c. 153, § 13, by a petition to this court. In the endeavor to come to an agreement before the superior court as to the proper form of a bill of exceptions, a draft [155 Mass. 241]was made by the

[27 N.E. 1011]

counsel for the plaintiff, and one or more subsequent drafts by the counsel for the defendant, but neither one of these proved satisfactory. The judge himself also prepared and submitted to the defendant a draft of a bill of exceptions which he was willing to sign, and in fact did sign, but this was not satisfactory to the defendant, and was not accepted by him. The defendant, therefore, presents this petition, seeking to establish the truth of his original bill of exceptions, as he has a right to do. He is not bound to accept a bill of exceptions prepared by his adversary or by the judge. What we have to do is to examine the bill of exceptions which was seasonably tendered by him, and ascertain and determine if he has established the truth of it, or of any separable parts of it. We are not to consider whether he might have presented any other exceptions than those actually contained in his bill of exceptions. We have nothing to do with anything except the bill of exceptions which he actually and seasonably tendered to the judge, and which by his petition he now seeks to establish. Sawyer v. Iron-Works, 116 Mass. 424, 432, and cases there cited. At the same time the right of an excepting party to have his exceptions considered by this court is not to be defeated by mere verbal errors or unimportant differences in the form of statement. Sawyer v. Iron-Works, ubi supra; Markey v. Insurance Co., 118 Mass. 178. If such errors are found, which may fairly be attributed to inadvertence, and which do not essentially change the exception intended to be taken, or if there is an omission of details which can readily be supplied, and which ought to be added in order properly to present the exception relied upon, it is within the power of this court, under a reasonable construction of the statute referred to, to suggest such needed amendments to the excepting party, and, if he adopts them, to allow him the benefit of his exceptions as thus modified. Otherwise, by an excess of strictness, a party might be deprived of substantial rights. It is always to be borne in mind, however, that the exceptions to which the party is entitled are, in substance, merely those which he has alleged in his bill of exceptions duly tendered. In accordance with the usual practice, a commissioner was appointed by this court to settle the truth of the exceptions, [155 Mass. 242]and made report thereof. The commissioner has made a report which does not follow the form of the bill of exceptions tendered by the defendant, but is a careful and chronological statement of the facts of the case, and of the course of the trial, which, if adopted by the defendant, would, with slight modifications, have made a proper form of a bill of exceptions. In this the commissioner has not exactly performed the function with which he was charged. But at the defendant's request we have before us, not only the commissioner's report of the course of the trial, but also the stenographic report of the testimony taken at the trial, and a stenographic report of the proceedings before the commissioner, so that we are able to take the defendant's bill of exceptions, and determine how far it should be allowed; and the results to which we have come are in all particulars the same, in substance, as those arrived at by the commissioner, though we have not felt at liberty to make as great changes as he did in the form of the bill of exceptions, as this would substitute a new bill of exceptions for that tendered by the defendant.

The defendant's bill of exceptions, after referring to the writ and pleadings, instead of stating the cause of proceedings in the order as they occurred at the trial, makes a statement of various particulars which were brought out in part from his own witnesses. It is to be supposed that the defendant intended in this way to make the statement of the case more clear. We have not found it so, but the order of making the statement is not of essential importance. The objection taken in the certificate of the presiding judge is that in several particulars...