254 Mass. 163 | Mass. | 1925
This is a bill of exceptions relating to questions raised in the Land Court on the motion of the respondents that the petitioner’s exceptions be dismissed for want of prosecution and failure to enter the same in the Supreme Judicial Court in accordance with the statute. The pertinent facts as set out in the exceptions are that the decision of the Land Court was filed on February 6, 1925, and that the petitioner’s “voluminous bill of exceptions . . . after several hearings, and many changes and additions, was finally allowed on August 17, 1925.” On September 15, 1925, the present motion to dismiss was filed. It was heard on September 23, 1925. Further findings of the judge are: “In order to save the labor and expense of having a new copy prepared for the printer in the recorder’s office, it was agreed between the recorder and counsel for the petitioner that the latter should present a full carbon copy of the bill of exceptions as allowed. One of the petitioner’s counsel then went away on his vacation, and in preparing the carbon copies it was found that certain portions had been mislaid in his , office. Messages were exchanged between counsel for the petitioner, who was in Boston, and his associate in whose office the missing carbons had been mislaid, but the carbons were not found until the latter returned from his vacation on or about September 16. Meantime no order had been placed in the recorder’s office for certified copies of the record necessary for entry in the Supreme Judicial Court. Such copies are not made in the recorder’s office until the bill of exceptions is ready for print.” The judge entered an order that the “petitioner must forthwith furnish the recorder with the carbon copy of the bill of exceptions as allowed or order a full copy made in the recorder’s office, and then at once take the necessary steps to have the certified copies prepared and the bill of exceptions printed.”
The hearing was continued to October 9. Further findings then m,ade were that on September 23 the petitioner for the first time gave directions for preparation of the necessary copies for entry of the case in this court. Shortly thereafter
The delay from August 17 to September 23 was not in compliance with the statute. The petitioner in his brief states that “In the Superior Court, exceptions, when allowed, are printed on order of the excepting party, and the estimated cost or some proportion thereof is deposited for the purpose. The papers, however, are prepared and sent to the printer and caused to be printed by the clerk of the Superior Court, after proper order has been given. In the Land Court, on the contrary, nothing is done by the Land Court about printing, because that court has no appropriation to defray the cost of printing. The result is that the papers are required by the Land Court to be printed by the parties themselves employing their own printers, not using the originals but copies .... The result is that in the Land Court, the parties must first procure copies of the original papers certified by the registrar ¡[recorder] or his employees. Afterwards, on certification by the printers, the printed copies are certified to this Court by the registrar [recorder] as correct copies. This is a practice with which the members of the bar are not in general acquainted, and in this particular instance the petitioner’s counsel did not know of it until they were informed by the Judge of the Land Court .... Until informed of this practice, they were totally unaware that the papers in the case were to be so prepared and certified.” If this is a correct statement of the facts as to the Land Court practice, it is not in accordance with the requirements of the statutes and the decisions of this court. It is doubtful if this statement in the brief of the petitioner reflects the actual practice in the Land Court, for the reason that the judge gave these requests for rulings: “When questions of law are taken directly from the Land Court to the Supreme Judicial
The delay between the allowance of the exceptions and the entry of the case in this court was from August 17, 1925, to October 20, 1925. It appears from the findings that the copies in fact were made and the printing done between September 23 and October 20. From August 17 to September 23 the only steps taken by the counsel for the petitioner were to agree with the recorder to furnish a carbon copy of
When the case came on for hearing on September 23, 1925, the respondent asked for rulings to the effect that on all the evidence it could not be found that the petitioner had proceeded with due diligence to enter the exceptions in the full court "as soon as may be.” That ruling ought to have been given. After September 23 the petitioner complied with the statute in preparing the case for entry to the full court. The respondent excepted to the continuance of the case from September 23 to October 9, and again to October 21. But for a circumstance presently to be mentioned his exceptions in that particular ought to be sustained. It is clear that, as matter of law, on September 23 it was apparent that the petitioner had not complied with the provisions of the statute respecting entry of exceptions in the full court. The facts in this case do not warrant a finding that the petitioner’s exceptions were entered in this court "as soon as may be” within the meaning of those words of the statute. The going away on a vacation and the mislaying of portions of the carbon copy do not constitute action as soon as was reasonably possible. We are not dealing here with a petition for late entry under G. L. c. 211, § 11, but with the explicit requirement of G. L. c. 231, § 135, the relevant words of which have already been quoted. The case at bar is governed on this point by several decisions. Bentley v. Ward, 116 Mass. 333. Griffin v. Griffin, 222 Mass. 218. Loonie v. Wilson, 233 Mass. 420, 424. Robinson v. Donaldson, 251 Mass. 334. Silverstein v. Daniel Russell Boiler Works, Inc., ante, 137.
Respondent’s exceptions overruled.
