Tufts v. Newton
| Decision Date | 20 January 1876 |
| Citation | 119 Mass. 476 |
| Parties | Joseph W. Tufts v. James C. Newton |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Middlesex. Writ of error to reverse a judgment of the Superior Court in an action of contract brought by Newton against Tufts. The error assigned was that exceptions taken by Tufts at the trial of that action before the jury were disallowed by the presiding judge, because not presented to him within the time required by law, whereas the record showed that they were presented within the time required by law.
The docket and files of that action (no extended record being produced) showed that the verdict was returned in favor of Newton October 15, 1874; that Tufts filed his bill of exceptions with the clerk October 16, 1874; that the court was in session every week day until October 22, 1874, when Bacon, J., made and signed this certificate thereon
Newton did not appear or plead to the writ of error within ten days after the return of the scire facias, and Tufts thereupon moved for a default. But Wells, J., afterwards, within the term, allowed Newton, against the objection of Tufts, to appear and plead in nullo est erratum; and made a report of the case, which stated the facts above set forth, and further stated that Tufts duly saved and alleged exceptions and reduced the same to writing, but did not present them to the judge (otherwise than by filing them with the clerk) until October 22, 1874, and that, "if competent evidence in this proceeding, it was admitted that said judge stated orally, as one of the reasons for refusing to allow said exceptions, that they had not been presented to him seasonably, and that he thought he had not the right then to allow them, without the consent of Newton, or to extend the time for the presentation of exceptions to the court, after the three days allowed by statute had expired." The report concluded as follows: "The case having been submitted to me upon the foregoing facts and offer of proof I thereupon adjudged that said judgment of the Superior Court should be affirmed, and, at the request of the plaintiff in error, report the case for the consideration of the full court."
Affirmed.
W. G Sprague, for the plaintiff in error.
W. S. Stearns, for the defendant in error.
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