Richmond Co-Op. Ass'n, Inc. v. Gill

• Decision Date: 29 December 1933
• Citation: 285 Mass. 50,188 N.E. 495
• Parties: RICHMOND CO-OP. ASS'N, Inc., v. GILL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

285 Mass. 50

188 N.E. 495

RICHMOND CO-OP. ASS'N, Inc.,

v.GILL et al.

Supreme Judicial Court of Massachusetts, Norfolk.

Dec. 29, 1933.

Exception from Superior Court, Norfolk County; Wilford D. Gray, Judge.

Action of contract by the Richmond Cooperative Association, Inc., against William Gill and others. There was a verdict for plaintiff in the sum of $2,848.24; a bill of exceptions was allowed; and, from a judgment on the verdict and award of execution for plaintiff notwithstanding allowance of exceptions and from an order denying defendants' motion to stay judgment and execution, defendants appeal.

Exceptions overruled and appeals dismissed.

John J. Walsh, of Boston, for plaintiff.

William A. Graustein, of Cambridge, for defendants.

RUGG, Chief Justice.

This action of contract resulted in a verdict for the plaintiff. The defendants' motion for a new trial was overruled. On February 14, 1933, the defendants filed a bill of exceptions. On March 14, 1933, the trial judge ordered that the defendants furnish him by May 1, 1933, a transcript, by the official stenographer from her notes, of the evidence and of the instructions to the jury. There was no compliance with this order. On May 4, 1933, the plaintiff filed a motion to overrule the defendants' exceptions. Hearing on this motion was had on May 6.

It was not error for the trial judge to refuse to appoint a stenographer to take evidence at this hearing. Commonly no evidence would be taken and the matter would be decided summarily.

Whether the defendants were given sufficient time for preparation for that hearing was a matter in the discretion of the trial judge. Noble v. Mead-Morrison Mfg. Co., 237 Mass. 5, 16, 129 N. E. 669.

The order that the defendants furnish transcript of the evidence was authorized by G. L. (Ter. Ed.) c. 231, § 121. Much more than the minimum time there specified was given to the defendants.

After hearing in which both parties participated, the plaintiff's motion to overrule the defendants' exceptions was allowed, and the exceptions filed by the defendants were overruled as matter of law and in the exercise of judicial discretion on May 6, 1933. In making that decision the trial judge found that, although notice of the order of March 14, 1933, was seasonably received, no transcript as there required had been furnished and not even an order given for such transcript. It is provided by G. L. (Ter. Ed.) c. 231, § 133, that ‘If, at law, * * * an excepting party neglects to provide a transcript of the evidence or of the instructions to the jury within the time ordered’ under section 121, the court ‘may, upon the application of the adverse party and after notice to all parties interested, order * * * the exceptions overruled * * * and thereupon, in the case of * * * exceptions, the decision * * * excepted to, shall be in full force and effect.’ It is plain from G. L. (Ter. Ed.) c. 231, §§ 121 and 133, in the light of St. 1895, c. 153, § 2, and St. 1896, c. 451, by which the substance of these provisions was first enacted, that power is conferred upon the trial judge to overrule exceptions for failure of the excepting party to comply with an order to furnish a transcript of the evidence and instructions even though the exceptions may not have been allowed. The change in phraseology in R. L. c. 173, § 115, and in G. L. c. 231, § 133, from that of the original enactment, wrought no alteration in meaning. Main v. County of Plymouth, 223 Mass. 66, 69, 111 N. E. 694;Duggan v. Ogden, 278 Mass. 432, 434, 180 N. E. 301, 82 A. L. R. 765.

The exceptions had not been presented by either party to the trial judge for allowance from the date of filing to May 16, 1933. It is provided in G. L. (Ter. Ed.) c. 231, by section 113, that the trial judge ‘shall * * * upon their presentation to him by any party to the action, examine the exceptions, and after hearing the parties, determine whether they are conformable to the truth;’ and by section 114, ‘If an excepting party, in any civil cause in which exceptions may be alleged, shall not within such time after the filing of his exceptions as the court may determine to be reasonable thus present them’ for allowance, the court may order them dismissed after hearing. ‘No exceptions shall thus be...