317 Mass. 164 | Mass. | 1944
The plaintiff, as assignee of the consignee, seeks to recover for loss of some of the machinery included in one shipment and for damage sustained by machinery contained in two other shipments. He alleges that the loss and damage were caused by the negligence of the defendant, the terminal carrier. After the case had been fully heard
The stipulation under which the case was submitted to the second judge did not require that judge to make any rulings upon evidence or to adopt any of the rulings that had been made at the first trial. Although those rulings appeared in the transcript of the evidence introduced at the first trial, the second judge was not requested to pass upon the competency of any of this evidence. He did not make in fact any ruling with reference to this evidence. The exceptions taken at the first trial became of no avail when that trial ended without any decision. No rights of the plaintiff were affected by any of the rulings made at that trial, and he was in the same situation as if that trial had never occurred. Commonwealth v. Cronin, 257 Mass. 535. Bruns v. Jordan Marsh Co. 305 Mass. 437. Curley v. Boston Herald-Traveler Cory. 314 Mass. 31. The exceptions taken at that trial ceased to have any validity when the death of the judge prevented the completion of the trial, and the second judge could not infuse any life into those exceptions by his allowance, even with the assent of the defendant, of a bill of exceptions that contained the exceptions taken at the first trial. Herrick v. Waitt, 224 Mass. 415. Edwards v. Cockburn, 264 Mass. 112, 116,
The remaining question is whether the plaintiff properly saved any exceptions to the denial by the second judge of his requests for rulings. The plaintiff in order to secure a review by means of a bill of exceptions was bound to save and perfect his exceptions in accordance with the pertinent statutes and rules of court. Statutes relating to procedure for review are strictly construed, Martell v. Moffatt, 276 Mass. 174; New England Trust Co. v. Assessors of Boston, 308 Mass. 543, and noncompliance with rules of court governing the saving of exceptions will bar review. Riley v. Brusendorff, 226 Mass. 310. Brighton Dressed Meat Co., petitioner, 284 Mass. 530. The proper saving of an exception is the first and fundamental step to secure a review by a bill of exceptions. The bill is merely the vehicle by which the exception is brought up to this court. If there is no existing exception, there is nothing that the bill can bring here. Hurley v. Boston Elevated Railway, 213 Mass. 192. Condé Nast Press, Inc. v. Cornhill Publishing Co. 255 Mass. 480. Bourget v. Holmes, 297 Mass. 25. Looby v. Looby, 303 Mass. 391. Hacking v. Coordinator of the Emergency Relief Department of New Bedford, 313 Mass. 413.
The statute, G. L. (Ter. Ed.) c: 231, § 113,‘provides that “Exceptions may be alleged by any party aggrieved by an opinion, ruling, .direction or judgment ... of the superior court.” It was said in Curry v. Porter, 125 Mass. 94, concerning an earlier statute, Gen. Sts. c. 115, § 7, differing so far as now materia] in form but not in meaning from the present statute, that “This provision imports, and such
Rule 72 of the Superior Court (1932) requires the formal taking of exceptions in writing “to any other opinion, ruling, direction or judgment made in the absence of counsel.” The paper filed by the plaintiff merely stated that the plain
Decisions, where rulings have been made in the absence of counsel, in which it was held that an exception could be saved in accordance with some prior arrangement with the judge or if the party did enough to lead the judge to believe that he desired to take an exception, are distinguishable. See Leyland v. Pingree, 134 Mass. 367; Newton v. Worcester, 169 Mass. 516; Jones v. Newton Street Railway, 186 Mass. 113; Thurston v. Blunt, 216 Mass. 264.
The motion to dismiss the exceptions is allowed.
So ordered.