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

COUNSEL

Marshall, Hamblet & Burke, for petitioner.

George F. Richardson, for Morse.

OPINION

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 was made by the 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, 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 matters are stated as facts which were really in controversy. This appears to be the case, and it might convey an erroneous impression to have them stated as absolute facts. But we do not think this objection so serious as to deprive the defendant of his exceptions, provided he makes the following amendments: In the second paragraph of the bill of exceptions, after the first sentence therein, at a place designated by the letter "a," insert these words, "In the course of the trial the defendant introduced testimony, by cross-examination of the plaintiff or otherwise, tending to show facts as follows." This statement of facts which the evidence tended to prove is to continue down to within seven lines of the bottom of the page, at a place designated by the letter "b." At this place insert these words, "It appeared that." The facts which appeared are those contained in the statement beginning "after conferences," and ending in the first line of the next page, with the words "said notes," the place being designated by the letter "c." At that place insert these words, "The defendant also introduced evidence tending to show that." This statement of facts which the evidence tended to show is to continue for four lines, to the place designated by the letter "d." At that place insert the words, "It appeared that," and strike out the word "and." The facts thus appearing are those contained in the rest of the paragraph. In the next paragraph these words should be added, at the end, "but was tendered at the trial." No specific exception was taken by the defendant in respect to any of the above matters, but they were stated for the purpose of showing the general aspect of the case, from his point of view.

The first exception alleged by the defendant in his bill of exceptions relates to the right of the plaintiff to introduce secondary evidence of the contents of the notes sued upon the notes being in the defendant's possession. The bill of exceptions goes on to say: "To this the defendant objected, and claimed that the plaintiff must first lay the foundation for the introduction of such secondary evidence, and that this presented a question to the court, and not to the jury, and he asked the court so to rule; but the court refused so to rule, and the defendant excepted thereto, and against the defendant's objection the court permitted the plaintiff by secondary evidence to show the contents of those notes." At the hearing before the commissioner, the two counsel for the defendant made statements going to show that they understood the facts to be in accordance with the statement in the bill of exceptions. The commissioner had before him the stenographer's minutes of the trial, and the stenographer himself was also a...