Moskow v. Murphy

• Decision Date: 31 October 1941
• Citation: 310 Mass. 249,37 N.E.2d 486
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: S. G. MOSKOW v. JAMES H. MURPHY & others. SAME v. SAME.

310 Mass. 249

37 N.E.2d 486

S. G. MOSKOW v. JAMES H. MURPHY & others. SAME v. SAME.

Supreme Judicial Court of Massachusetts, Suffolk.

October 31, 1941

October 10, 1941.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Practice, Civil Exceptions: what is subject to exception, notice of allowance, prosecution; Order of court. Pleading, Civil Character of pleading.

A motion in the Superior Court "to dismiss" a bill of exceptions for failure to comply with the requirements of G. L. (Ter Ed.) c. 231,

Section 135, was treated by this court in accordance with its true nature as an application under Section 133, as amended by St. 1933, c.

300, Section 2, that the exceptions be overruled.

Except by leave of this court under G. L. (Ter. Ed.) c. 211, Section 11, an order allowing an application under c. 231, Section 133, as amended by

St. 1933, c.

300, Section 2, that exceptions of an adverse party be overruled for failure to comply with the requirements of Section 135 is not subject to exception.

A failure by the clerk of court to give notice of the allowance of a bill of exceptions as required by Rule 74 of the Superior Court (1932) does not prevent the case from becoming "ripe for final preparation and printing of the record for the full court" within G. L. (Ter. Ed.) c.

231, Section 135, nor affect the duty of the excepting party thereunder to give an order in writing for the preparation of the papers within ten days after the case has become ripe.

An action in which exceptions have been saved becomes "ripe for final preparation and printing of the record for the full court" under G. L.

(Ter. Ed.) c. 231, Section 135, upon the date when a bill of exceptions, indorsed "allowed" and signed by a judge, is returned to the clerk of court.

TWO ACTIONS OF CONTRACT. Writs in the Municipal Court of the City of Boston dated September 1, 1938, and November 3, 1938, respectively.

The cases were heard in the Superior Court after removal. The "motion to dismiss" exceptions was heard by Fosdick, J.

A. S. Allen (O.

S. Allen with him,) for the defendant Zeller.

No argument nor brief for the plaintiff.

FIELD, C.J. These two actions of contract brought in the Superior Court were tried before a judge sitting without a jury. There was a finding in each case against one of the defendants. A consolidated bill of exceptions of this defendant -- a copy of which is contained in the printed record -- was "allowed" by the trial judge on December 17, 1940 and was "filed" on December 18, 1940.

Thereafter, on February 17, 1941, the plaintiff filed in the Superior Court a so called "motion to dismiss" this the defendant has failed to take any step in furtherance of the prosecution of the exceptions as required by G. L. (Ter. Ed.) c. 231, Section 135, including his failure to give to the clerk of the Superior Court in which such cases are pending an order in writing for the preparation and printing of the record to the full court as required by said statute, at any time since the allowance of the said bill of exceptions and since the time that he acquired knowledge of the allowance of the same."

After a hearing on this "motion to dismiss" a judge of the Superior Court made the following findings: "I find (1) that no order in writing required by G. L. (Ter. Ed.) c. 231, Section 135, for the preparation of papers and copies of papers for transmission to the full court of the Supreme Judicial Court has been given by the defendant . . . or his counsel to the clerk of this court since the allowance of his bill of exceptions on December 17, 1940 to the day of the hearing before me, February 25, 1941. (2) Counsel for the defendant . . . first learned of the allowance of his bill of exceptions on January 19, 1941." The judge declined to rule, as requested by the defendant, that "If the clerk has not yet given notice to the defendant of the allowance of the defendant's bill of exceptions in accordance with Rule 74 of this court, this case is not yet ripe for final preparation and printing of the record for the Supreme Judicial Court within the meaning of G. L. (Ter. Ed.) c. 231, Section 135," ruled "(1) that Rule 74 of this court imposes upon the clerk as a public officer the duty of giving notice to the parties of the allowance or disallowance of a bill of exceptions, (2) that this provision of Rule 74 is directory only, and (3) that the clerk's failure to comply with the direction of the rule does not suspend the operation of General Laws (Ter. Ed.) c. 231, Section 135," and allowed the motion. The defendant excepted to the rulings of the judge, his refusal to rule as requested, and the allowance of the plaintiff's "motion to dismiss." The defendant's consolidated bill of exceptions relating to this matter was allowed and has been entered in this court.

1. The plaintiff's "motion to dismiss" was in substance an application to the Superior Court under G. L. (Ter. Ed.) c. 231, Section 133, as amended by St. 1933, c. 300, Section 2, that the defendant's bill of exceptions relating to the trial on the merits be "overruled" by reason of the defendant's neglect "to take the necessary measures by ordering proper copies to be prepared" to carry questions of law to this court. And the order of the judge thereon was in substance an order "overruling" the exceptions relating to the trial on the merits. The plaintiff's "motion to dismiss" and the order, and incidental rulings, relating thereto must be treated in accordance with their true nature. Home Owners' Loan Corp. v. Sweeney, 309 Mass. 26 , 28, and cases cited. By force of said Section 133, as amended, there is "no right to take an appeal, exceptions or other proceeding in the nature of an appeal from such an order . . . overruling exceptions . . . for any cause above stated, except by leave of the full court under section eleven of chapter two hundred and eleven." These exceptions relating to the "motion to dismiss," therefore, are not properly before this court. They must be dismissed in accordance with the usual practice where matter on the files of the court is not rightly there.

2. Since, however, the result to the defendant would be the same if his exceptions relating to the "motion to dismiss" were properly before us, it is appropriate to state the ground upon which these exceptions, if they were before us, would be overruled. See Charbonneau v. Guillet, 278 Mass. 153, 155; Commonwealth v. McKnight, 289 Mass. 530 , 545.

The question sought to be raised by these exceptions is whether, on the facts found, the defendant, as matter of law, failed to comply with the requirement of G. L. (Ter. Ed.) c. 231, Section 135, that the excepting party -- here the defendant -- "give to the clerk . . . of the court in which the case is pending, within ten days after the case becomes ripe for final preparation and printing of the record for the full court, an order in writing for the preparation of such papers and copies of papers for transmission to the full court." No such order had been given to the clerk at the time of the hearing on the "motion to dismiss" on February 25, 1941. There is no contention that the case had not become "ripe" for "final preparation and printing of the record for the full court" more than ten days before that date in all respects except in the respect that no notice of the allowance of the bill of exceptions had been given by the clerk in accordance with the provisions of Rule 74 of the Superior Court (1932). The defendant contends that the failure of the clerk to give such notice prevented the case from becoming "ripe" for "final preparation and printing of the record for the full court" so that the ten-day period fixed by said Section 135 never began to run. A decision adverse to the defendant upon this contention is required by the decision in Home Owners' Loan Corp. v. Sweeney, 309 Mass. 26 , where it was held as a matter of interpretation of said Section 135 that the ten-day period fixed thereby began to run irrespective of notice. See page 30. It is unnecessary to restate or amplify the reasoning of that case. We adhere to the conclusion therein reached. This conclusion does not import that said Rule 74 is invalid. It imports merely that said rule does not modify the meaning or effect of the controlling statute -- said Section 135. There was no error in the rulings of the judge, his refusal to rule as requested, or his allowance of the "motion to dismiss," in substance an order "overruling" the exceptions of the defendant relating to the trial on the merits.

3. To avoid any possible misapprehension as to the decision in Home Owners' Loan Corp. v. Sweeney, 309 Mass. 26 , we add some explanation thereof. It was there said that the "case became `ripe' for such final preparation and printing on December 20, 1940, when the defendant's bill...