Vengrow v. Grimes
| Decision Date | 29 January 1931 |
| Citation | 174 N.E. 505,274 Mass. 278 |
| Parties | VENGROW v. GRIMES et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division.
Action by Harry Vengrow against George F. Grimes and another in which there was a finding for plaintiff. A motion for new trial was denied, request for report and draft report was disallowed, and petition to establish report before appellate division was denied, and defendants appeal.
Order denying petition to establish report affirmed.
Edward M. Dangel, J. J. Holtz, and B. L. Gorfinkle, all of Boston, for Myer Pave.
This action was heard by a judge of the municipal court of the city of Boston. A finding was made for the plaintiff. No requests for rulings appear to have been presented at the trial on the merits and no report requested. One of the defendants (hereafter called the defendant) by leave of court filed a motion for a new trial. That motion was denied after hearing. Thereafter, the defendant filed a request for a report and subsequently a draft report. This claim of draft report was disallowed. Three days later the defendant filed another request for report and draft report. That also was disallowed. Then he filed a petition to establish his report before the appellate division. This petition was denied. The defendant appealed from that disallowance.
When a petition is filed to establish a report disallowed by the trial judge, the duty of the appellate division is somewhat similar to that of the full court respecting petitions to establish the truth of exceptions. Cohen v. Berkowitz, 215 Mass. 68, 102 N. E. 124;Wilson v. Checker Taxi Co., 263 Mass. 425, 161 N. E. 803; Rule 39 (1928) of the Municipal Court of the City of Boston. See Commonwealth v. Vallarelli (Mass.) 173 N. E. 582.
One of the grounds alleged in the motion for new trial was newly discovered evidence. That ground need not be considered because by Rule 12 (1928) of that court the facts upon which such motion rests must be set forth and verified by affidavit and there were in this motion no facts set forth and no affidavit. The rule is valid. Borley v. Allison, 181 Mass. 246, 249, 63 N. E. 260;Soebel v. Boston Elevated Railway, 197 Mass. 46, 51, 83 N. E. 3,14 Ann. Cas. 421.
It is a fundamental principle that one seeking review of the rulings and findings of a trial judge must set out enough on the record to enable an appellate tribunal to determine whether there has been prejudicial error. Posell v. Herscovitz, 237 Mass. 513, 516-517, 130 N. E. 69.
[5] The defendant contends that on his motion for a new trial he requested rulings to the effect that (1) as matter of law the motion should be allowed and (2) as matter of law the motion should be allowed as the finding was against the law. If it be assumed that these requests were presented and refused, there was no reversible error. Manifestly these two requests relate to matters of law which might have been presented at the trial on the merits and made the subject of a report in the event of adverse rulings. Such...
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Kelly v. Foley
...18. The judge had authority, and, we think, a duty, to in clude a statement of these occurrences in his report. Vengrow v. Grimes, 274 Mass. 278, 279, 174 N. E. 505. See Silano v. Carosella, 272 Mass. 203, 205, 172 N. E. 216,Cohen v. Price, 273 Mass. 303, 306, 173 N. E. 690. It follows that......
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