Patterson v. Ciborowski

• Decision Date: 03 December 1931
• Citation: 179 N.E. 161,277 Mass. 260
• Parties: PATTERSON v. CIBOROWSKI et ux.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

277 Mass. 260

179 N.E. 161

PATTERSON

v.CIBOROWSKI et ux.

Supreme Judicial Court of Massachusetts, Worcester.

Dec. 3, 1931.

Appeal from Central District Court, Worcester County; H. H. Hartwell, Special Judge.

Action by William A. Patterson against Jacob S. Ciborowski and wife. From an order of the appellate division dismissing report on a petition to establish report after its disallowance by trial judge, defendant appeals.

Affirmed.

F. M. Jablonski, of Worcester, for plaintiff.

H. J. Meleski, of Worcester, for defendants.

RUGG, C. J.

The finding of the trial judge in this action of contract in a district court was for the plaintiff. Thereafter the defendants, desiring to take the case to the appellate division, filed a draft report. That draft report was disallowed by the trial judge in these words: ‘This report is disallowed because of the second sentence of the second paragraph on Page Two.’ That sentence was that ‘He [the plaintiff] further testified on cross-examination that the oil burner was to be a Super Oil Heater to be installed according to law and Fire Prevention Regulations and so as to give the defendants satisfaction and that if the defendants were not satisfied the oil burner was to be serviced so that the defendants would be satisfied.’ Thereupon the defendants filed a petition to establish the report in the form originally presented by them. Hearing was had before one judge of the appellate division of the Western district assigned to pass upon the questions raised by this petition. There is printed in the record what appears to be a stenographic report of the evidence received at this hearing. The printing of this evidence was unnecessary and improper because the judge who conducted the hearing rightly set forth the questions of law raised before him in his decision upon the petition. That judge found and decided that the plaintiff did not testify as alleged in the sentence sought to be incorporated in the report. He dismissed the petition to establish the report and signed his decision to that effect. No other signature is appended to it. That decision was filed on October 4, 1930. The defendants filed on October 7, 1930, an appeal from the order dismissing their petition to establish a report ‘and all other matters of record to the Supreme Judicial Court.'

[1] There is nothing to indicate that the judges of the appellate division ever considered or passed upon the questions of law set forth in the decision of the judge to whom was referred for hearing the petition to establish the report. Their opinion contains no reference to those questions. It is silent on that subject. On the contrary, it seems plain from the record as a whole that that judge alone decided those questions of law. He performed the duty reposed in a judge so assigned under rule 30 of the Rules of the District Courts (1922). Questions of law raised and decided at such hearing before one judge cannot be brought directly to this court by appeal. It is only from a final decision of the appellate division that appeal lies to this court. The appellate division consists of three judges, two constituting a quorum to decide all matters. Its function in rendering a final decision from which appeal lies to this court cannot be delegated to one judge. Such decision must be rendered by the appellate division in order that appeal may be taken. Matson v. Sbrega, 250 Mass. 138, 145 N. E. 35;Demers v. Scaramella, 252 Mass. 430, 147 N. E. 894;Sections 110A, 110C added to G. L. c. 231 by St. 1922, c. 532, § 8; said § 110A amended by St. 1925, c. 132, § 2, and G. L. c. 231, § 109, as amended by St. 1929, c. 265, § 2, and all as now being set forth in St. 1931, c. 426, §§ 116, 117, 119. The appeal from the decision dismissing the petition to establish the report is not rightly before us. If the defendants had desired review by this court of the question of law then raised, steps should have been taken to have them decided by the appellate division instead of attempting a direct appeal to this court. It cannot be thought that efforts to that end would have been impeded by the judge of the appellate division who held the hearing.

[4] Since the record discloses irregularities and some looseness of practice, it seems wise to deal with the case a little more at length. Subject to the ‘exception’ of the defendants, the trial judge was present at the hearing before the single judge of the appellate division on the petition to establish the report and having been called as a witness by the plaintiff testified as to what took place at the trial before him and particularly that the testimony described in the quoted sentence from the draft report was not given before him. It would have been the proper practice if the trial judge had made and signed a certificate with respect to the draft report as originally filed, to the effect that the sentence already quoted, recited in that report as testimony of the plaintiff, was not in fact given by the plaintiff and that the report was untrue in that particular and therefore was disallowed. Statements of fact made by the trial judge in such certificate are to be treated as true in the first instance and will stand as final unless rebutted, explained or overcome by other evidence. The correct course for a trial judge who disallows exceptions or a report is to set forth succinctly the facts and reasons which impel him to that conclusion. Then the tribunal required to pass upon the question whether his conclusion was warranted has before it in brief and unmistakable terms the grounds upon which his action is based, and is bound to consider and give due weight to such statements. It was said in Bottum v. Fogle, 105 Mass. 42, that ‘the judge whose statements are to be contradicted is not a party to the petition [for the establishment of exceptions] and is not supposed to be present at the hearing of the proof.’ That principle in substance has been frequently reaffirmed and states the general practice as to the establishment of exceptions under G. L. c. 231, § 117. In general, the same practice ought to prevail with respect to reports by a trial judge in district courts. Vengrow v. Grimes (Mass.) 174 N. E. 505. As applied to such reports, however, the rule stated in Bottum v. Fogle is not inflexibly rigid provided substantial justice appears to have been done. In the case at bar the indorsement of the trial judge disallowing the...