187 Mass. 521 | Mass. | 1905
It appeal’s in the record that the plaintiff objected to the allowing of this bill of exceptions on the ground that no exception was taken. The certificate of the justice is, “Exceptions allowed so far as I have the right to allow them.” This presents the question whether an exception was taken in such a form as to entitle the defendant to an allowance of it.
The only question of law which the defendant seeks to present is whether the evidence warranted the finding of the presiding justice. There was no request for a ruling on this subject, nor any exception alleged or taken previously to the filing of the bill, twenty days after the filing of the findings and memorandum of opinion by the justice, and at least nineteen days after the defendant received notice of these findings.
The case is covered by the decision in Keohane, petitioner, 179 Mass. 69, in which, as in this case, the trial was before a judge without a jury, and the defendant, after a decision, sought to raise questions of law involved in the findings. In the opinion the court says : “ 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
There is another reason why this exception should not be considered. If a finding expressly includes a ruling of law first made when the decision is filed a considerable time after the end of the trial, the statute requires that an exception shall be alleged if the party desires a revision of the ruling. R. L. c. 173, § 106. This section also requires that it shall be reduced to writing and filed with the clerk within twenty days after the verdict is rendered, or if the case is tried without a jury, within twenty days after the notice of the decision is received. This notice must be given by the clerk. R. L. c. 165, § 19. This statute has always been interpreted as meaning that, to save an exception, it must be alleged promptly. Rule 48 of the Superior Court is as follows: “ No exception shall be allowed by the presiding justice, unless the same be alleged and saved at the time when the opinion, ruling, direction, or judgment excepted to is given. And all exceptions to any charge to the jury shall, unless previously saved, be alleged before the jury are sent out. When further instructions are given in the absence of counsel after the jury have retired, the presiding justice may permit exceptions thereto at any time within twenty-four hours next following. All requests for instructions shall be made in writing before the closing arguments unless special leave is given to present further requests later.” That court has had a similar rule for many years. In Joannes v. Underwood, 6 Allen, 241, Chief Justice Bigelow said, “ This rule is a wise and salutary one, which the court was fully authorized to pass.” See also Lee v. Gibbs, 10 Allen, 248; Spooner v. Handley, 151 Mass. 313, 317. The provision of the statute, allowing twenty days for reducing the exceptions to writing and filing them, has no reference to the time of alleging them. See Lee v. Gibbs, ubi supra.
On both grounds the bill of exceptions must be dismissed. We come to this conclusion without reluctance, as a perusal of the evidence shows that the decision was well warranted.
Exceptions dismissed.