338 Mass. 7 | Mass. | 1958
This is a petition, brought purportedly pursuant to G. L. (Ter. Ed.) c. 231, § 117, to establish exceptions alleged to have been taken in an action of tort in which the petitioner was the plaintiff and the respondent New England Theatres, Inc., was the defendant. The action was for personal injuries received in a fall on premises of the defendant. After a trial without jury the judge made
The respondent contends that G. L. (Ter. Ed.) c. 231, § 117,
While as a general rule no inquiry into the merits of a bill of exceptions is open upon a petition to establish them, the petition may be dismissed if it is obvious that there is nothing in the exceptions if proved. Fitch v. Jefferson, 175 Mass. 56, 57. Bishop, petitioner, 208 Mass. 405, 407. Koch, petitioner, 225 Mass. 148, 150. Commonwealth v. Vallarelli, 273 Mass. 240, 247. Graustein, petitioner, 305 Mass. 571.
Here there is no substantial question of law. The statute relating to motions for a new trial in actions tried without
The trial judge’s statement accompanying the disallowance of the bill was sufficiently accurate where no special circumstances appeared. See Perry v. Manufacturers Natl. Bank, 315 Mass. 653, 656.
We have not found it necessary to consider the question of the remedy expressly left open in Bartley v. Phillips, 317 Mass. 35, 39-40, “where a party is surprised by an outrageous award of damages in an action tried without jury.”
Petition dismissed.
“If the presiding justice . . . disallows or fails to sign and return the exceptions or alters any statement therein, and either party is aggrieved thereby, the truth of the exceptions presented may be established before the full court upon petition stating the grievance, and thereupon, the truth of the exceptions being established, they shall be heard, and the same proceedings taken, as if the exceptions had been duly allowed and entered. The supreme judicial court shall make rules for settling the truth of exceptions alleged and not allowed.” See Rule 22 of the Rules for the Regulation of Practice before the Full Court (1952), as amended November 4, 1955. 332 Mass. 790.