Petition of Rines
| Citation | 122 N.E.2d 364,331 Mass. 714 |
| Parties | Petition of David RINES, Petitioner (two cases). |
| Decision Date | 05 November 1954 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Lester W. Cooch, Boston, David Rines, Boston, for petitioner.
Bertram A. Sugarman, Boston, for respondents Mary Gilmore and others.
John A. Perkins and John F. Dunn, Boston, for respondent Louis Wolff.
Leon F. Sargent, Boston, for respondent Isaac R. Jankelson.
Before QUA, C. J., and LUMMUS, WILLIAMS and COUNIHAN, JJ.
These are two petitions filed under G.L. (Ter.Ed.) c. 231, § 117, by the petitioner both individually and as administrator of the estate of his deceased wife Lucy L. Rines to establish respectively two consolidated bills of exceptions in sixteen actions at law tried in the Superior Court in some of which the petitioner brought the action personally and in others of which he brought the action in his capacity as administrator.
The First Petition.
The first petition, filed on May 4, 1954, seeks to establish the petitioner's so called 'Second Substitute Consolidated Bill of Exceptions,' filed on May 4, 1951. This bill, as its title indicates, is not an original bill of exceptions. It is a matter of serious doubt whether the trial court ever permitted it to be filed or to stand as a substitute for or amendment of the original bill. What happened was that the petitioner moved to amend his original bill by substituting therefor his 'Substitute Consolidated Bill of Exceptions' (not the one to which this first petition relates). On January 8, 1951, this motion was denied, but by the same order the petitioner was granted leave to amend his original bill by filing a 'Second Substitute Consolidated Bill of Exceptions' on or before May 6, 1951. Such a bill (the one to which this first petition does relate) was filed on May 4, 1951, and was seasonably presented to the trial judge, and affidavits of presentation were seasonably filed. Thereafter a hearing was held on June 29, 1953, and on July 2 the trial judge entered an order reading, 'After hearing upon the allowance of the plaintiff's Second Substitute Consolidated Bill of Exceptions, it is ordered that the plaintiff be given leave to file on or before September 15, 1953, an Amended Second Substitute Consolidated Bill of Exceptions which will:
Then follows a detailed enumeration of changes which were to be made in the 'Second Substitute Consolidated Bill of Exceptions' (the one to which this first petition relates). In pursuance of this order the petitioner did, on September 15, 1953, file an 'Amended Second Substitute Consolidated Bill of Exceptions' (not the one to which this first petition relates) in which he incorporated some of the changes specified in the order of July 2, 1953, but failed to incorporate others which he contends were not conformable to the truth. The petition alleges that this amended bill 'was never substituted for the said Second Substitute Consolidated Bill of Exceptions' (the one to which this first petition relates). It does not appear that any order was ever made expressly permitting this 'Second Substitute Consolidated Bill of Exceptions' (the one to which this petition relates) to be filed or to stand as an amendment to the original bill. If such amendment was never permitted in the trial court this 'Second Substitute Consolidated Bill of Exceptions' (the one to which this first petition relates) has no standing and cannot be established in this court. In re Graustein, Petitioner, 304 Mass. 679, 33 N.E.2d 969; Hector v. Boston Electric Light Co., 161 Mass. 558, 560-561, 37 N.E. 773, 25 L.R.A. 554; Ryder v. Jenkins, 163 Mass. 536, 538, 40 N.E. 848. See Barnard Mfg. Co. v. Eugen C. Andres Co., 234 Mass. 148, 125 N.E. 170.
The petitioner contends, however, as we understand him, that the order of the court of July 2, 1953, containing at its beginning the words, 'After hearing upon the allowance of the plaintiff's Second Substitute Consolidated Bill of Exceptions [the one to which this first petition relates], it is ordered that the plaintiff be given leave to file on or before September 15, 1953, an Amended Second Substitute Consolidated Bill of Exceptions * * *' constituted an implied recognition of the 'Second Substitute Consolidated Bill of Exceptions' (the one to which this first petition relates) as having been properly filed so that a hearing could, be, and was, had upon the question of its allowance, and that this was equivalent to a former order permitting the petitioner to amend the then pending exceptions in accordance with said 'Second Substitute Consolidated Bill of Exceptions.'
If we accept this contention the petitioner's position is not improved. If, as this contention presupposes, the judge held a hearing on June 29, 1953, on the question of allowance of the petitioner's 'Second Substitute Consolidated Bill of Exceptions' (the one to which this first petition relates) it is plain that his order of July 2 represented the action which he intended to take as a result of that hearing, and that this action was not an allowance of that bill of exceptions. It was a disallowance of the bill as filed, even though accompanied by a statement in precise detail of what changes might be made in it on or before September 15 which presumably would induce the judge to allow it as changed. Some of these changes were never made. It is provided by G.L. (Ter.Ed.) c. 231, § 117, that if the judge 'disallows or fails to sign and return the exceptions or alters any statement therein' the truth of the exceptions presented may be established before this court. By his order of July 2, 1953, the judge made it abundantly clear that he had no intention of signing and returning the bill of exceptions in the form presented to him, and that he refused to allow it.
Rule 22 of the Rules for the Regulation of Practice before the Full Court, 328 Mass. 692, 701-702, provides that whenever a party seeks to establish the truth of allegations in a bill of exceptions which a judge has refused to allow and sign he shall file his petition within twenty days after notice of such refusal, and that no party shall be allowed to establish the truth of any such allegations in this court if he had failed to comply with this rule. The first petition to establish now before us was not filed until May 4, 1954, more than ten months after the order of the judge refusing to allow and sign the 'Second Substitute Consolidated Bill of Exceptions.' It must be assumed, in the absence of anything to show the contrary, that the petitioner had notice in due course of the action of the judge. This first petition was therefore filed too late.
If the petitioner's 'Second Substitute Consolidated Bill of Exceptions' (the one to which this first petition relates) was not disallowed by the order of the court of July 2, 1953, there is nothing anywhere in the petition or the accompanying...
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