In re Keohane

179 Mass. 69 | Mass. | 1901

Holmes, C. J.

This is a petition to prove exceptions. The commissioner to whom the case was referred finds that during the trial the petitioner did not take or save any exceptions. It is certain that no requests for instructions were made in writing before the closing arguments, as required by Rule 48 of the Superior Court, and although we assume on the testimony that the counsel for the petitioner understood that he had what amounted to special leave to present requests later, we do not perceive the implication of such leave in a postponement of discussion of a question raised on evidence to the arguments, or any reason why, if the requests would have been in time, they should not have been presented in writing.

The argument most pressed is that, in a case tried before a judge alone, if the judge bases his finding upon a ruling of law, the party aggrieved has the right to except to such ruling, and that the judge did that in this case. The judge found for the plaintiff, and on the back of the memorandum of the finding was written “ See Stevens v. Tuite, 104 Mass. 328, for rule in computation of damages, pages 334, 335.” This is what the defendant relies upon. But the judge in disallowing the bill of exceptions certified that he “ made no specific rulings under Stevens v. Tuite, 104 Mass. 334, 335, which entitles the defendant to an exception,” and explained that the reference to the case was in answer not to the defendant’s but to the plaintiff’s contention, and was intended to show why he did not give the plaintiff larger damages in accordance with his claim. But the judge found substantial damages, and the defendant had been directing his main defence to the proposition that the plaintiff could recover nominal damages only. The judge therefore ruled by implication that the evidence warranted a finding of substantial damages. It may be urged that the correctness of this implied ruling is open.

But, in our opinion, if a party wishes to save a question of law upon the evidence, he must do so before the trial is over, and cannot raise it for the first time by what may be an afterthought, although it was not so in this case. If a judge should leave a case to a jury upon a wrong ruling, it would be too late to except after a verdict had been returned. The rule is the same when the finding is by the judge. If there lias been no preliminary understanding or arrangement for saving a party’s rights, it is too late to except to a finding as unwarranted by the evidence after it has been made. When the finding is recorded nothing on the face of the record shows that the excepting party is aggrieved, and at that stage there is no right to make the evidence a part of the record in order to establish the grievance.

We should have thought in this case that the petitioner had been dealt with too technically, and had been prevented from saving rights which he obviously meant and tried to save, were we not convinced that the judge’s finding of facts cut the ground from under the propositions of law relied upon by the petitioner and that that was the reason for the somewhat summary treatment which his counsel received. We think also that the finding was warranted by the evidence. To state our view a little more fully, although it is not within the scope of our decision, if we assume that a surety on a replevin bond when the judgment for a return was on a nonsuit has a right to show that the defendant in replevin had no title, (Easter v. Foster, 173 Mass. 39, 40,) the evidence in this case warranted a finding that there had been an implied consent of all'parties in interest that the defendant in replevin, the present plaintiff, should have the title to the replevied goods. Whether it would have mitigated damages to show that the defendant in replevin was a bailee need not be considered. Compare Leonard v. Whitney, 109 Mass. 265, 268, 269, with Brewster v. Warner, 136 Mass. 57.

Petition dismissed.