Baron v. Fitzpatrick

167 Mass. 417 | Mass. | 1897

Morton, J.

Section eight of Pub. Sts. c. 153, contains various provisions relating to exceptions in civil and criminal cases. Amongst other things, it provides to what exceptions may be taken, how they shall be preserved, when and with whom they shall be filed, that notice shall be given to the adverse party, and that they shall be presented to and allowed by the presiding justice. According to this section, exceptions were to be filed, and notice given to the adverse party, before the final adjournment of the court at which they were taken, and “ within three days after the verdict, ... or after the opinion, ruling, direction, or judgment excepted to ” was given. Foley v. Talbot, 162 Mass. 462. Purcell v. Boston, Halifax, & Prince Edward Island Steamship Line, 151 Mass. 158. Conway v. Callahan, 121 Mass. 165. St. 1895, c. 153, § 1, changes this by providing that parties alleging exceptions under Pub. Sts. c. 153, § 8, “ shall, in criminal cases, file the same with the clerk within three days, and in: civil cases within tvventy days, after the verdict in the case, or after1 the opinion, ruling, direction, or judgment excepted to is given.” The defendant contends that this operates as a repeal of § 8, or at least of so much of it as requires notice to be given to the adverse party of the filing of the exceptions, and that therefore the ruling of the presiding justice who held that such notice must be given was wrong. It is evident, we think, that St. 1895, c. 153, was not intended as a repeal of Pub. Sts. c. 153, § 8, and does not operate as such. By its terms it recognizes that section as continuing in force. So far as the St. of 1895 is plainly repugnant to and inconsistent with § 8, it necessarily operates as a repeal of it, but no further. The only matter with which the later statute deals is the time for filing exceptions, which is extended to twenty days in civil cases, with such further time as may be allowed by the court. This is repugnant to and therefore .repeals as much of § 8 as provides that the exceptions shall be filed before the final adjournment of the court at which they were taken, “ and within three days after the verdict,” etc. The defendant insists that, if § 8 is allowed to stand, the result will be that notice that the exceptions have been filed must be given within three days after the ruling excepted to, when the exceptions themselves need not be filed for twenty days, which he well says would be absurd. But we do not think that the result which he insists upon will follow. The two statutes are to be construed together for the purpose of ascertaining the intention of the Legislature, and when ascertained that is to be earned out, if it can be done consistently with the rules of law. And we think that it is plain that, in extending the time for filing exceptions, the Legislature intended that the time for giving notice to the adverse party should be correspondingly extended also, not that no notice should be required, and that the St. of 1895 is to be regarded as in the nature of an amendment to and repeal of so much of § 8 as relates to the time of filing exceptions, and to matters connected therewith; and we discover no difficulty in so treating and applying it.

The result is, that, the defendant not having given to the adverse party notice of the filing of his exceptions, they must be overruled, and it is so ordered.

-Exceptions overruled.