Tourles, In re

• Decision Date: 20 July 1960
• Citation: 168 N.E.2d 509,341 Mass. 305
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Jennie TOURLES, Petitioner. Jennie TOURLES v. James BYRON.

Page 509

168 N.E.2d 509

341 Mass. 305

Jennie TOURLES, Petitioner.

Jennie TOURLES v. James BYRON.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 9, 1960.

Decided July 20, 1960.

Sydney Berkman, Boston (Reuben Goodman and Joseph Kruger, Boston, with him), for petitioner.

James W. Kirk, Boston, for respondent.

Before WILKINS, C. J., and SPALDING, WILLIAMS, WHITTEMORE, and CUTTER, JJ.

WILLIAMS Justice.

This is a petition to establish exceptions taken by the plaintiff at the trial of her action of tort for trespass and conversion against James Byron. The declaration was in four counts of which count 1 alleged the breaking and entering of the plaintiff's building in Falmouth on or about September 3, 1953; count 2 the breaking and entering of the same building on the following day; count 3 the conversion of goods listed in an attached schedule designated 'A'; and count 4 the same conversion described in somewhat different terms.

The action was tried with that of the same plaintiff against Joseph R. Hall (Tourles v. Hall, Mass., 168 N.E.2d 505 ¹). The two cases arose out of the same transactions. There was evidence that on August 20, 1953, Hall, a deputy sheriff, levied on the alleged personal property of the plaintiff under an execution issued on a judgment obtained by the defendant against the husband of the plaintiff. The property seized, which consisted of the equipment and fixtures of a restaurant in Falmouth operated by the plaintiff, was sold at execution sale on September 3, 1953, and was purchased by the defendant for $1,000. It was removed and carried away by him on the same and the following day. He took other property from the premises which had not been sold by the deputy sheriff and removed certain portions of the equipment in a manner to cause unnecessary damage to the restaurant. The material evidence relating to the seizure and sale is stated in the opinion in Tourles v. Hall and need not be repeated. At the conclusion of the evidence the judge directed verdicts for the defendant on all counts subject to the plaintiff's exceptions.

The plaintiff's bill sets forth these exceptions and others saved at the trial to rulings upon evidence. On presentation of the bill to the judge the plaintiff was allowed to file a substitute bill. Such a bill was filed on July 25, 1957. There were various conferences in reference to the allowance of the substitute bill and the petitioner alleges 'that at the most recent conference, held October 31, 1958, with the said justice, he refused to allow or disallow your petitioner's exceptions.' See G.L. c. 231, § 117. This petition was filed on November 20, 1958. It was referred by this court to a commissioner on January 6, 1959. The commissioner reported on October 30, 1959, that he had examined the transcript of the testimony, a voluminous list of objections to the substitute bill consisting of fifty-six separate items, and an equally voluminous reply to the objections. He said, 'I am constrained to find that the bill of exceptions as filed does not conform to the truth and I find that it should be corrected and revised, through the elimination of testimony set forth in question and answer form, and otherwise, in order to have it comply in form and substance with the provisions of G.L. c. 231, § 113, and the decisions of the court respecting bills of exceptions. The corrections and revisions which I deem to be necessary would involve a virtual redraft of the entire bill of exceptions so as to restate much of the evidence and so as to set forth testimony in narrative form instead of verbatim. It is contended by counsel for the petitioner that as commissioner I have no power to rewrite or redraft the bill of exceptions or to revise or modify it in any material way. As I have doubts as to my power and authority to revise, rewrite or modify the bill of exceptions, I submit my report in this form, making the simple findings hereinabove set forth.'

A petition to establish exceptions cannot be used as a means of cempletely redrafting or remodelling the bill, Rines, petitioner, 331 Mass. 714, 720, 122 N.E.2d 364, and this court has no power to allow amendments. A petition to establish must relate to the exceptions originally filed and disallowed in whole or in part. Squier v. Barnes, 193 Mass. 21, 24, 78 N.E. 731; Barnett, petitioner, 240 Mass. 228, 230, 130 N.E. 111. It was said in Freedman, petitioner, 222 Mass. 179, 181, 110 N.E. 161, 'While minor deficiencies may be made complete and comparatively insignificant errors rectified, there can be no material modification of the bill as presented. It must either be allowed or disallowed in substantially that form * * *. If the bill of exceptions as filed,...