314 Mass. 195 | Mass. | 1943
The petitioner is the plaintiff in the action. After a verdict in his favor, but before the entry of judgment, he caused the real estate of the defendant to be attached by special precept. Thereafter one Margaret M. Pierce filed an application alleging that a certain described parcel of land, “standing in the name of” the defendant and included in the attachment, belonged to said Pierce, and that the_ defendant had no interest therein, and praying that the attachment of said property be dissolved. G. L. (Ter. Ed.) c. 223, § 114, as amended. The exceptions which the petitioner seeks to establish arose out of the hearing on this application for dissolution of attachment. The bill of exceptions as filed by the plaintiff stated that
The judge was not required to sign a bill of exceptions that stated erroneously the method by which the hearing was conducted and thereby opened up the possibility of arguments in this court along lines that would not have been open if the facts had been correctly stated. Apart from the possible argument that there was a case stated, it would seem that Pierce could reasonably object to a bill that wrongly asserted that she had agreed to all the facts set forth therein. We do not doubt that the bill was prepared in good faith. Counsel may have been misled by the oral understanding that had been reached before the hearing began. It may well be true that Pierce’s testimony and documentary evidence by which she was bound, taken with admissions of counsel by which the respective parties were bound, left the case in substantially the same posture for purposes of argument in this court as did the so called “agreed statement of facts” inserted in the bill of exceptions, but after considerable study we are not altogether certain that this is true, and we think that the plaintiff had no right to put the burden of any risk in this respect upon Pierce. Bills of exceptions ought not to rest upon an incorrect approach to the facts, especially where the exact effect of the error in all possible aspects may not be foreseen.
It has been said that "the right of an excepting party to have his exceptions considered by this court is not to be defeated by mere verbal errors, or unimportant differences in the form of statement.” Morse v. Woodworth, 155 Mass. 233, 241. In that case this court, upon a petition to establish exceptions, suggested a number of perfecting changes in the wording of the bill and gave the excepting party an opportunity to adopt them. See Clemens Electrical Manuf. Co. v. Walton, 173 Mass. 286. Compare Sawyer v. Yale Iron Works, 116 Mass. 424, 434, 435. On the other hand, in O’Connell, petitioner, 174 Mass. 253, a case in which it appeared that the failure to amend the exceptions so that they would conform to the truth “was the petitioner’s own fault in refusing to comply with the reasonable suggestions of the court,” it was said that Morse v. Woodworth "goes to the extreme of liberality in favor of petitioners to prove
In the case before us, although we think that the petitioner proceeded in good faith, yet when the difficulty with his bill was precisely pointed out to him at the time and place when and where such bills should be settled he made no attempt to amend but by his insistence upon his bill as
Petition dismissed.