204 Mass. 331 | Mass. | 1910
This case first came before us upon a report of a judge of the Superior Court, made at the request of the respondent, presenting all questions of law that entered into an order of disbarment of the respondent, and it was reported in 196 Mass. 100. After argument and due consideration, a rescript was sent to the Superior Court,. directing the entry: “ Order of disbarment affirmed.” Thereupon the respondent filed in the Superior Court a motion to vacate the order, and in arrest of judgment, and afterwards a motion for a new trial, and from time to time several other motions, which were heard and passed upon in the Superior Court. The case now comes before us upon appeals, which, according to the respondent’s brief, confirmed by the record, are seven in number, as follows: From the denial of motion in arrest of judgment, from the denial of motion for a new trial, from the denial of motion to amend the record, from the denial of the second motion to amend the record and the denial of the third motion to amend the record, from the disallowance of a bill of exceptions, and from the allowance of a motion to dismiss.
This order was not treated as the final entry of record, made under the R. L. c. 177, § 1, which ends the jurisdiction of the court, so that an execution may be issued in ordinary cases, and leaves the court with no further jurisdiction except upon a petition to vacate the judgment, or upon a writ of review, unless the case is opened for further proceedings by action of this court on an appeal. It was an order of judgment, although it was also a judgment within the meaning of the R. L. c. 173, § 96, which gives a right of appeal to the Supreme Judicial Court. Accordingly the judge rightly treated the case as still pending before him, and made a report of it to this court. In like manner, after a rescript had been received affirming the order, he treated the case as still pending in the Superior Court, by entertaining different motions from time to time and hearing and deciding them. The final entry of record, contemplated by the R. L. c. 177, § 1, in proceedings which are ripe for judgment, seems never to have been made, and the case still awaits this entry, upon the disposition of the appeals now before us.
All the matters referred to in the motion in arrest of judgment are concluded by our former decision. The decision covered all questions of law that entered into the order and affected its validity, as well those relating to the so called sentence, and the opportunities for hearing upon it, and the time when the order was made, as any others.
The same is true as to that part of the motion for a new trial which refers to the alleged mistake of law made by the trial judge in the decision of the case. The other grounds on which the motion was put were all matters in the discretion of the court, and were dealt with as such. No error appears in denying this motion.
The bill of exceptions was “disallowed as contrary to the truth.” No appeal lies from such an order. The respondent’s remedy, if he had any, was by a petition to prove exceptions. R. L. c. 173, § 110.
Most of the questions raised by these appeals are of a kind upon which the Superior Court was concluded by the former decision, and which could not properly be brought a second time to this court. “ It is not the practice of the full court to rehear parties upon questions which have been once argued and decided, or to hear them upon questions of law which have been waived or abandoned at a former hearing, but it in its discretion may do so.” Nashua & Lowell Railroad v. Boston & Lowell Railroad, 169 Mass. 157, 164. Evans v. Hamlin, 164 Mass. 239. Pingree v. Coffin, 12 Gray, 288, 324. Winchester v. Winchester, 121 Mass. 127, 130. Kingsbury v. Buckner, 134 U. S. 650.
The orders appealed from are all affirmed, and judgment is to be entered in accordance with the order of April 9, 1906.
So ordered.
The grounds upon which the motion “ to vacate and arrest judgment ” was based were as follows: “ (1) Because the entry of said judgment was premature and without authority in law in that said entry was made within thirty days of the date of the findings of fact made by the court in said case which findings were made March 10, 1906, when the action was not ripe for judgment; (2) because the order of judgment of disbarment was premature, for the reason that after the findings of fact made by the court March 10, 1906, there was no hearing upon the question of sentence or judgment before the same was made and ordered; (3) because there is a material variance in matter or substance between the allegations in the petition and the findings of the court against the respondent affecting the jurisdiction and authority of the court to make the findings made against the respondent without amendment to the petition ; (4) because the preliminary findings of fact and the general finding of fact adverse to the respondent cannot be identified with any one or all of the allegations in the petition; (5) because the respondent is entitled to, as a matter of right, a separate and formal hearing on the question of the final judgment or sentence of the Court, which has not been given him; (6) because the alleged petitioner is not entitled as a matter of law as a remedy by prayer that the respondent be disbarred, or for any judgment of the Court in the premises; (7) because there is no allegation of the character, capacity, existence, competency, or interest of the ‘ Bar Association of the City of Boston ’ which would or could make it an available party in interest to the proceedings herein, or entitled to any relief or remedy, general or special; (8) because there are no findings of facts by the court upon the distinct respective charges ‘ that the respondent has not continued to be and is not of good moral character ’; that he obtained the alleged order for money and assignment from Bruce by false representations; that he discharged Richard J. Lane, Esq. from the case; (9) because it appears of record in the memorandum of findings stated as a ground for finding that the respondent intended to appropriate the money in question ‘ but the respondent in his interview with the sheriff and by his conduct since that time has indicated sufficiently his intention to appropriate the money to his own use.’ ”
