Restuccia v. Bonner

• Decision Date: 14 September 1934
• Citation: 192 N.E. 17,287 Mass. 592
• Parties: RESTUCCIA v. BONNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 592

192 N.E. 17

RESTUCCIA

v.BONNER.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 14, 1934.

Exceptions from Superior Court, Middlesex County; J. M. Gibbs, Judge.

Supplementary proceedings by Placido Restuccia against James J. Bonner. From the judgment of the district court, the defendant appealed to the superior court. From an order denying a motion for a new trial, the defendant brings exceptions.

Exceptions overruled.

J. J. Matthews, of Boston, for plaintiff.

D. B. Curnane and Max Rosenblatt, both of Malden, for defendant.

RUGG, Chief Justice.

Supplementary proceedings by the creditor were begun against his debtor in a district court under G. L. (Ter. Ed.) c. 224. Pending the examination of the debtor, the creditor filed charges of fraud under section 19 to the effect (1) that the debtor had fraudulently conveyed property with intent to secure it for himself and to defraud his creditors, and (2) that the debt was founded on a contract and the debtor had contracted it with intent not to pay it. In the district court the debtor pleaded not guilty and after trial was found guilty on the first charge and not guilty on the second charge. The debtor appealed to the Superior Court. The debtor did not plead to the charges anew in the Superior Court. No exception was taken to this failure. The case was tried in the Superior Court to a jury. A verdict of guilty was returned on both charges. Thereafter, the debtor filed a motion for a new trial, specifying four grounds: (1) that the court failed to have the defendant plead to the charges, (2) that the verdict was against the law as given to the jury, (3) that the verdict was against the evidence and the weight of the evidence, (4) that the jury had during their deliberations certain improper and prejudicial papers. At the hearing upon the motion for a new trial the debtor requested rulings of law to the effect: 1. If no plea to the charges was entered in the Superior Court, the motion must be granted. 2. If the jury had the original summons to appear in the district court, the motion must be granted. 3. If the jury had in its possession the charges of fraud, the motion must be granted. 4. If the second charge was based upon a bond, there was no debt and the motion must be granted as to that charge.

The trial judge refused to grant the requests for rulings. The second request was refused because it was not in conformity to the facts. The motion for a new trial was denied. No findings of facts were made. No evidence is reported. No facts are set forth except those already recited. It does not appear that any exceptions were taken at the trial before the jury.

A motion for new trial is addressed to the discretion of the trial judge. No exception lies to the exercise of a sound judicial discretion in disposing of such a motion. Questions of law which might have been, but were not, raised at the ariginal trial cannot be presented as of right upon a motion for a new trial. Holdsworth v. Tucker, 147 Mass. 572, 18 N. E. 430;Davis v. Boston Elevated Railway Co., 235 Mass. 482, 496, 497, 126 N. E. 841, and...