Smedley v. Johnson

• Decision Date: 15 October 1907
• Citation: Smedley v. Johnson, 196 Mass. 316, 82 N. E. 21 (Mass. 1907)
• Parties: SMEDLEY v. JOHNSON et al.
• Court: Supreme Judicial Court of Massachusetts

196 Mass. 316

82 N.E. 21

SMEDLEY v. JOHNSON et al.

Supreme Judicial Court of Massachusetts, Hampden.

October 15, 1907

COUNSEL

E. H Lathrop and L. M. Blydenburgh, for plaintiff.

J. B Carroll and W. H. McClintock, for defendants.

OPINION

KNOWLTON C.J.

This bill in equity was brought by the plaintiff for an accounting and a settlement of the affairs of a partnership between him and the defendants. The defendants denied that he was a member of the firm, and the case was referred to a master who found that there was no partnership between these parties, whereupon the bill was dismissed and the plaintiff appealed. The question arises on exceptions to the master's report, four in number, which were overruled by the superior court.

The plaintiff failed to comply with the equity rules of the superior court numbered 31 and 32 in regard to the filing of objections and exceptions to a master's report. No written objections were ever filed under the first of these rules, and no formal objection appears ever to have been made as a foundation for exception 1 or for exception 4. Observance of the rules prescribing the method of raising questions of law upon the report of a master is important to secure orderly procedure and to preserve the rights of parties. It has been decided repeatedly that such questions cannot be considered by the court without a substantial observance of the rules, unless the delinquent party is relieved by a special order under rule 31. Edwards-Hall Co. v. Dresser, 168 Mass. 136, 46 N.E. 420; Whitworth v. Lowell, 178 Mass. 43, 59 N.E. 760; Hillier v. Farrell, 185 Mass. 434, 70 N.E. 424; Huntress v. Hanley, 195 Mass. 236, 80 N.E. 946; Huntress v. Allen, 194 Mass. ----, 80 N.E. 949. Under these decisions it is plain that exceptions 1 and 4 are insufficient because they are not founded upon a previous objection.

Exceptions 2 and 3 relate to the admission of evidence at the hearing before the master. The master's report shows that certain objections were made and certain exceptions were alleged when the evidence was received. If such an objection, appearing in the body of the master's report, might be considered a sufficient foundation for an exception to the master's report, without bringing in any written objections under rule 31, this second exception does not point out with distinctness the evidence referred to, but it seems to relate to all the evidence tending to show who constituted the partnership. It does not 'briefly and clearly specify the matter excepted to and the cause thereof,' in accordance with the requirement of rule 32. Exception 3 points directly to the admission in evidence of a certain memorandum in writing which the report shows to have been received against the defendants' objection, and which therefore raises the question whether an objection so taken, and so appearing, can be availed of as a...