285 Mass. 50 | Mass. | 1933
This action of contract resulted in a verdict for the plaintiff. The defendants’ motion for a new trial was overruled. On February 14, 1933, the defendants filed a bill of exceptions. On March 14, 1933, the trial judge ordered that the defendants furnish him by May 1,1933, with a transcript, by the official stenographer from her notes, of the evidence and of the instructions to the jury. There was no compliance with this order. On May 4, 1933, the plaintiff filed a motion to overrule the defendants’ exceptions. Hearing on this motion was had on May 6.
It was not error for the trial judge to refuse to appoint a stenographer to take evidence at this hearing. Commonly no evidence would be taken and the matter would be decided summarily.
Whether the defendants were given sufficient time for preparation for that hearing was a matter in the discretion of the trial judge. Noble v. Mead-Morrison Manuf. Co. 237 Mass. 5,16.
The order that the defendants furnish transcript of the evidence was authorized by G. L. (Ter. Ed.) c. 231, § 121. Much more than the minimum time there specified was given to the defendants.
After hearing in which both parties participated, the plaintiff’s motion to overrule the defendants’ exceptions was allowed, and the exceptions filed by the defendants were overruled as matter of law and in the exercise of judicial discretion on May 6, 1933. In making that decision the trial
The exceptions had not been presented by either party to the trial'judge for allowance from the date of filing to May 16, 1933. It is provided in G. L. (Ter. Ed.) c. 231, by § 113, that the trial judge “shall . . . upon their presentation to him by any party to the action, examine the exceptions, and after hearing the parties, determine whether they are conformable to the truth”; and by § 114, “If an excepting party, in any civil cause in which exceptions may be alleged, shall not within such time after the filing of his exceptions as the court may determine to be reasonable thus present them” for allowance, the court may order them dismissed after hearing. “No exceptions shall thus be dismissed within three months after the date of their filing.” Further provision is made on this subject by Rule 74 of the Superior Court (1932). There is nothing in any of these provisions to prevent the trial judge from examining the exceptions of his own motion as soon as they
The bill of exceptions now before us was later allowed. The trial judge was empowered by G. L. (Ter. Ed.) c. 231, § 116, to grant the motion of the plaintiff that judgment be entered on the verdict and execution awarded notwithstanding the allowance of the exceptions on the ground that the exceptions were immaterial, frivolous, and intended for delay. No appeal lies from the allowance of such a motion. Williams v. Clarke, 182 Mass. 316. Bullock, petitioner, 254 Mass. 14, 16.
The defendants filed a paper entitled a “Defendants’ Motion to Stay Judgment and Execution.” This motion was denied. The defendants appealed. There is nothing before us on this appeal. There is no finding that the facts set forth in the motion are true. Even if they are assumed to be true, there is nothing to show error in the denial of the motion. Moreover, appeal does not lie from the denial of such a motion because it was not an “order decisive of the case founded upon matter of law apparent on the record.” G. L. (Ter. Ed.) c. 231, § 96. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. Check v. Kaplan, 280 Mass. 170, 174.
There is no merit in any of the contentions presented by the defendants.
Exceptions overruled.
Appeals dismissed,