Vallavanti v. Armour & Co.

• Citation: 162 N.E. 689,264 Mass. 337
• Parties: VALLAVANTI v. ARMOUR & CO.
• Decision Date: 15 August 1928
• Court: United States State Supreme Judicial Court of Massachusetts

264 Mass. 337

162 N.E. 689

VALLAVANTI

v.ARMOUR & CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Aug. 15, 1928.

Petition by Joseph Vallavanti to establish the truth of exceptions disallowed by the superior court, opposed by Armour & Co. Petition dismissed.

J. J. Cummings, of Boston, for plaintiff.

RUGG, C. J.

This is a petition to establish the truth of exceptions. It arises in this way: Pursuant to decision in this case reported in 260 Mass. 417, 157 N. E. 527, by rescript dated June 30, 1927, the clerk of the superior court was directed to make this entry: ‘Exceptions sustained, judgment for defendant, G. L. c. 231, § 122.’ The plaintiff filed a motion in arrest of judgment. Summarily stated the contentions therein set forth are that G. L. c. 231, § 122, whereby the Supreme Judicial Court is empowered in certain circumstances to order judgment where at the trial a request for ruling that the plaintiff cannot recover is denied, is unconstitutional and violative of the rights of the plaintiff under the State and Federal Constitutions. These contentions are founded in substance upon allegations that the plaintiff took exceptions during the trial, the nature of which is not disclosed, but that such exceptions were not reduced to writing and allowed as required by the statute. See Browne v. Hale, 127 Mass. 158, 162;Brooks v. Shaw, 197 Mass. 376, 378, 379, 84 N. E. 110;Salem v. Salem Gas Light Co., 241 Mass. 438, 135 N. E. 573;Stone v. Commonwealth Coal Co., 259 Mass. 360, 156 N. E. 737. The motion in arrest of judgment was denied in the superior court, and a bill of exceptions with respect to that motion was seasonably filed. Upon it the judge indorsed this certificate:

‘This bill of exceptions fairly construed, involves, in various forms the claim that I have erred in not ruling that the Supreme Judicial Court was in error in ordering judgment to be entered for the defendant. In my opinion such a question cannot be raised in this court. A bill of exceptions will not lie for refusing to rule as requested and should not be allowed. The bill therefore is disallowed.’

There is no occasion for the appointment of a commissioner. The petition on its face raises the question of law whether the judge was right in the ruling contained in his certificate of disallowance. There appears to be no dispute about the facts.

[1] A motion in arrest of judgment lies only for errors of law apparent on the record. Bar Association of City of Boston v. Casey, 227 Mass. 46, 116 N. E. 541;Pizer v. Hunt, 253 Mass. 321, 323, 148 N. E. 801.

[2] The motion in arrest of judgment in its essential features manifestly is not founded upon errors of law apparent on the record of the case. The attempt is made by that motion to get upon the record matters of which, prior to the filing of the motion, there was no suggestion on the record. There was nothing to indicate that the plaintiff had saved any exceptions at the trial. Without something on the record showing the exceptions of the plaintiff, there is nothing on which to found this motion in arrest of judgment.

It is provided by G. L. c. 231, § 136, that ‘a judgment shall not be arrested for a cause existing before the verdict or finding, unless such cause affects the jurisdiction of the court.’ McManus v. Thing, 208 Mass. 55, 58, 94 N. E. 293, 294. The causes set forth in various forms of words in the motion in arrest of judgment are all founded upon the basic averment that the plaintiff took some exceptions during the trial. That was a cause which existed before verdict. Plainly it does not affect the jurisdiction of the court. Lonergan v. American Railway Express Co., 250 Mass. 30, 40, 41, 144 N. E. 756;Paige v. Sinclair, 237 Mass. 482, 483, 130 N. E. 177.

There is nothing on this record which renders pertinent principles stated in West v. Platt, 124 Mass. 353, and in Noyes v. Noyes, 224 Mass. 125, 134, 112 N. E. 850.

The application for reargument, to which reference is made in the affidavit of counsel attached to the motion in arrest of judgment, has been examined. It contains no suggestion that the plaintiff had saved any exceptions during the trial.

[3] Such exceptions must be treated as of no effect and nonexistent. They vanished away because there was no compliance with the peremptory provisions of statute and the governing practice. G. L. c. 231, § 113; Sullivan v. Roche, 257 Mass. 166, 170, 153 N. E. 549, and cases there collected; Petition of Thorndike, 257 Mass. 409, 412, 153 N. E. 888;Romanausky v. Skutulas, 258 Mass. 190, 195, 154 N. E. 856.

The motion in arrest of judgment is so inextricably bound up with allegations as to exceptions taken by the plaintiff at the trial that we think the trial judge rightly treated it as raising questions on that footing alone, and disallowed the exceptions.

[4] However, if it be assumed in favor of the plaintiff that the constitutionality of G. L. c. 231, § 122, under the Fourteenth Amendment to the Constitution of the United States is open to him, he is not entitled to relief. That statute in substance provides that, where motion for a directed verdict has been made by the defendant and denied in the trial court, and a verdict has been returned for the plaintiff, and it appears to this court upon the whole record on review that the motion ought to have been granted, then this court may order judgment to be entered for the defendant. Similar provision with respect to a motion by the plaintiff is found in G. L. c. 231, § 123. These sections are not mandatory. The power conferred thereby ‘will ordinarily be exercised only when it is apparent that the real issues have been fully tried, or the merits of the case are plain.’ Archer v. Eldredge, 204 Mass. 323, 327, 90 N. E. 525, 526;Grebenstein v. Stone & Webster Engineering Corp., 205 Mass. 431, 440, 91 N. E. 411. There are numerous cases beside those just cited where this court has refused to order judgment under these sections. See, for example, Bishop v. Pastorelli, 240 Mass. 104, 107, 132 N. E. 716;Wood v. Fairbanks, 244 Mass. 10, 137 N. E. 924.These sections do not prescribe a fixed and inflexible rule. They leave much to the sound judicial discretion and sense of justice of this court. See Davis v. Boston Elevated Railway, 235 Mass. 482, 496, 497, 502, 126 N. E. 841. It is vain to discuss the question whether a statute authorizing the exercise of sound judicial discretion violates any constitutional guaranty. Those two sections of the statute present a question of state procedure. Their validity under the Constitution of this commonwealth was established after careful consideration by Bothwell v. Boston Elevated Railway, 215 Mass. 467, 102 N. E. 665, Ann. Cas. 1914D, 275, and that point is no longer open to debate. It has been acted upon in so many cases, both before and after the Bothwell decision, that it would be useless labor to collect them all. It has become the settled course of judicial proceedings in cases where this court feels that no new trial ought to be had.

[5] The Seventh Amendment to the Constitution of the United States, as to trial by jury, and the interpretation placed upon it by the Supreme Court of the United States in Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029, are not concerned with state...