Ryder v. Jenkins

• Decision Date: 24 May 1895
• Citation: 40 N.E. 848,163 Mass. 536
• Parties: RIDER v. JENKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

163 Mass. 536

40 N.E. 848

RIDER v. JENKINS.

Supreme Judicial Court of Massachusetts, Suffolk.

May 24, 1895

COUNSEL

E.H. Savary, for petitioner.

P.J Casey, for respondent.

OPINION

FIELD C.J.

This petition is irregular, in that it does not purport to set out an exact copy of the exceptions filed in the superior court.It sets out a copy of the testimony, with a copy of the indorsement of the presiding judge on the exceptions.An examination of the original exceptions shows that they contained a short statement of the nature of the action and of the defense made by the petitioner.If the petition is allowed, and the truth of the exceptions established, the nature of the action and of the issues tried may, perhaps, be supplied by the copies of the writ and pleadings, which are usually furnished to the court; but a petition to prove exceptions should contain an exact copy of the exceptions which have been filed.The action was for money had and received by the defendant to the use of the plaintiff, as administratrix of the estate of George Rider, deceased.The answer of the defendant admitted the receipt of the money except one item of the amount of $41.75, and alleged that the defendant was the attorney of the plaintiff as said administratrix, and received the money, except said item of $41.75, as such attorney, and paid it out, by direction of the plaintiff, to the creditors of the estate, and to other persons entitled thereto.The plaintiff denied that the defendant was employed by her as her attorney, or was authorized by her to pay the money to any person.The case was submitted to the jury, who returned a verdict for the plaintiff for the whole amount of her claim.The exception taken is to the refusal of the presiding justice to rule that on the whole evidence the plaintiff had failed to make out a case.The certificate signed by the justice presiding at the trial is as follows: "The statements contained in the foregoing bill of exceptions are conformable to the truth, but, as I am of opinion that it is wholly unnecessary to make a full report of all the evidence in the case by question and answer a part of the defendant's exceptions, I disallow this bill of exceptions for the reason that the defendant has not 'reduced his exceptions to writing in a summary mode' as required by section 8, c 153, of the Public Statutes."The full report of the evidence referred to is the stenographic report of the whole testimony taken at the...