244 Mass. 460 | Mass. | 1923
This is an appeal from a judgment in an action of tort. There are printed in what purports to be the record copies of the writ, the plaintiff’s declaration, separate answers of the several defendants, plaintiff’s requests for rulings, fifteen in number, defendants’ requests for rulings, twenty-one in number, findings of fact and rulings of law including rulings upon the requests of both the plaintiff and the defendants, concluding with an order for judgment for the defendants, signed by the judge of the Superior Court who heard the case without a jury, the docket entries and the plaintiff’s appeal from the judgment. From the docket entries it appears that the jury was discharged and by agreement of counsel hearing was had before the court on December 6, 1922, that the findings and order for judgment for the defendants was filed by the judge on January 19, 1923, that judgment was entered for the defendants on the same day, and that on January 30, 1923, the plaintiff’s appeal was filed.
The judge’s findings of fact and rulings of law and the requests for instructions by the parties are no part of the record. They could have been made a part of the record and properly brought to this court only by being incorporated in a report or in a bill of exceptions. This has been decided so often as hardly to require a citation of authorities. See Cressey v. Cressey, 213 Mass. 191, Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, and cases collected in each opinion. Therefore no question of law raised by such findings and rulings is before us..
It is obvious that judgment for the defendants entered on the same day as the finding of the judge and his order for judgment was premature. It seems apparent from inspection of the papers printed, as well as from the briefs and statement made at the bar, that the findings and rulings of the judge were made after the conclusion of the trial and in the absence of counsel. Therefore, under Rule 45 of the Superior Court (1923), the plaintiff had a right to file a written statement that it excepted thereto within three days after receipt of notice from the clerk of such order, ruling or decision, Simmons v. Poole, 227 Mass. 29, 34, and by Rule 51 of the Superior Court (1923), and G. L. c. 231, § 113, to
Only three classes of cases can now be brought to this court by appeal. This is neither an order sustaining or overruling a demurrer, nor an order based on a case stated, and hence does not belong to the first tw.o classes of cases described in G. L. c. 231, § 96, and Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133. Manifestly it cannot be brought before us by appeal unless it falls within the third class there described, viz., “Where an order has-been entered ‘decisive of the case founded upon matter of law apparent on the record.’ ” Premature entry of a judgment cannot, by any reasonable interpretation fall within that description. The order for judgment was founded upon the findings of fact-made by the judge and his rulings of law and upon nothing else. Therefore the case is not rightly here by. appeal.
The plaintiff appears to have been deprived of his right under the statute and rules of court to present and have allowed his exceptions. If that be so, it is an injustice which ought to be remedied. The premature entry of the judgment would seem to-have been a clerical error arising from misunderstanding, accident or mistake, which should be corrected by the Superior Court by setting aside the judgment in order to make its record conform to-the truth. Karrick v. Wetmore, 210 Mass. 578, 579. Commonwealth v. Soderquest, 183 Mass. 199, 200. Reno v. Cotter, 236 Mass. 556. If the facts are as we assume them to be, doubtless-this would have been done forthwith if the matter had been called to the attention of the judge who heard the case. It may be done now. It was said at the bar that the plaintiff seasonably claimed his exceptions under Rule 45, but that the clerk refused to receive its written statement to that effect because the case had gone to-
The plaintiff also has a right to file petition as a separate proceeding to vacate the judgment under G. L. c. 250, §§ 15-20. Rollins v. Bay View Auto Parts Co. 239 Mass. 414, 422, 423. Shour v. Henin, 240 Mass. 240. Maker v. Bouthier, 242 Mass. 20. Whether that would relieve it against failure to claim exceptions and to reduce exceptions to writing and file them as required by the rules of court and the statute need not be considered. It hardly can be presumed that the discretionary power to report the questions of law actually raised, which is vested in the trial judge, after the erroneous judgment has‘been vacated, will not afford to the plaintiff adequate redress for any real injustice suffered by it.
Appeal dismissed.
