Wyness v. Crowley

• Decision Date: 28 June 1935
• Citation: 196 N.E. 924,292 Mass. 459
• Parties: WYNESS et al. v. CROWLEY. CROWLEY v. WYNESS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

292 Mass. 459

196 N.E. 924

WYNESS et al. v. CROWLEY.

CROWLEY v. WYNESS et al.

Supreme Judicial Court of Massachusetts, Norfolk.

June 28, 1935

Proceeding by Robert B. Wyness and another against Lillian I Crowley. From the decree, Lillian I. Crowley appeals. On motion in Supreme Judicial Court to remand the record for a report of the evidence.

Motion denied.

Appeal from Probate Court, Norfolk County.

G. W Cox and M. J. Gordon, both of Boston, for petitioners.

O Storer, of Boston, for respondent.

RUGG Chief Justice.

This is a motion presented to the full court to remand to the register of probate the record in probate appeals with respect to a petition for adoption of a child and also a petition for return of the child to the mother, so that the record shall include a report of the evidence. It is in substance a motion for diminution of the record to the end that it may be corrected and amplified. Doherty's Case, 222 Mass. 98, 109 N.E. 887. A stenographer was appointed to take the testimony before the judge pursuant to G. L. (Ter. Ed) c. 215, § 18. A decree was entered allowing the adoption and dismissing the petition to return the child to the mother. The trial judge filed a report of the material facts. The mother appealed and requested an estimate of costs of preparing the papers. The register of probate recites, in a statement appended to the present record, that the estimate of costs of preparing the record including the printing of a transcript of the evidence was almost four times the estimated amount of printing the record without the evidence; that counsel for the appellees orally stated that he desired a transcript of all testimony printed, but that the appellant's counsel desired the record printed without including the report of the evidence. It has been so printed and is before us without any transcript of the evidence.

The practice so far as prescribed by statute is in G. L. (Ter Ed.) c. 215, §§ 11, 12, and c. 214, §§ 23, 24. The material words are in the last-named section, and are these: ‘ Upon an appeal, the testimony of witnesses who have been examined orally before a justice * * * shall, at the request of any party made before any evidence is offered, be reported to the full court.’ The precise question is whether the prevailing party in a case governed by equity procedure can insist that the entire evidence be reported at the expense of the appealing party. Respecting this matter it was said in Robinson v. Donaldson, 251 Mass. 334, at page 336, 147 N.E. 679, 680:‘ It must be a rare case where a prevailing party in equity can insist on the printing in full of the evidence when the appealing party is willing to rest his case before the full court on the pleadings and the report of material findings by the judge.’ The purpose of the general equity procedure, established by statute and by practice, of having the evidence taken before the trial judge reported to the full court, is that the case may be heard on appeal on the same evidence as was heard at the original hearing to the end that this court may revise a finding made by the trial judge upon oral testimony. That is the only way in which this court can be put in a position analogous to that of the trial judge and enabled to review his conclusions as to findings of fact. The essence of that equity practice is that ...