Sawyer v. Yale Iron Works

116 Mass. 424 | Mass. | 1875

Gray, C. J.

The right to establish the truth of exceptions disallowed by the judge presiding at the trial is given and limited by the statute, which provides that “ the truth of the exceptions presented may be established before the Supreme Judicial Court upon petition setting forth the grievance, and thereupon, the truth thereof being established, the exceptions shall be heard, and the same proceedings had as if they had been duly signed and brought up to said court with the petition.” Gen. Sts. c. 115, §11.

The certificate of disallowance, which the presiding judge is required by the Gen. Sts. c. 115, § 8, to make in writing, is primâ facie evidence that the exceptions presented are not conformable to the truth, though subject to be controlled by other evidence. Bottum v. Fogle, 105 Mass. 42.

If no objection is made to the form, the time of filing or the service of the petition, the practice is to refer it to a commissioner to hear the parties and report to the court the facts bearing upon the question whether the truth of the exceptions is established; but that question is a question of law, to be decided by the court upon the facts reported. Cullen v. Sears, 112 Mass.

The remedy is limited to exceptions taken at the trial and seasonably presented in writing to the presiding judge. Joannes v. Underwood, 6 Allen, 241. Lee v. Gills, 10 Allen, 248. Bottum v. Fogle, 105 Mass. 42. And the substantial truth, though not the literal accuracy, of the exceptions as so alleged and tendered must be proved. If an exception alleged does not state the ruling excepted to, and the evidence to which it applied, with substantial accuracy, so as to present the same question, and in the same aspect, to this court as to the court below, the petitioner is net entitled to be heard in this court upon the exceptions, either in the form in which they were presented to the judge below, or in the form in which it is made to appear that they should have been presented; not upon the exceptions alleged, because they are not proved; nor upon the exceptions proved, because they were not alleged. Cullen v. Sears, above cited. Crow v. Stowe, 113 Mass. But the right of the excepting party to have an exception, duly alleged by him, considered by this court, is not to be defeated by mere verbal errors or unimportant differences in the form of statement. Bates v. Santom, ante, 120.

If the bill, as tendered to the presiding judge, contains several distinct and independent exceptions, clearly and separately stated, the truth of one or more of them may be established, although the others are not proved as alleged, or are waived by the excepting party. Thus in Commonwealth v. Marshall, 15 Gray, 202, where a bill of exceptions alleged twelve distinct grounds of exception, stated and numbered separately, and the excepting party waived all but one, which related to a ruling upon a question of evidence, that exception was allowed and considered and sustained. The right to waive some of the exceptions alleged, and rely upon the others, on proving their truth, was recognized in the opinion of the court in Bottum v. Fogle, 105 Mass. 42, 44; but, as no exceptions had been duly alleged in that case, the court had no occasion to consider this matter particularly. In Cullen v. Sears, above cited, the bill tendered contained two matters of exception, wholly distinct from each other, the one to rulings as to the effect of an auditor’s report, and the other upon a variance between the declaration and the proof; and, although the truth of the exceptions upon the first point was not established, the exception upon the other, being proved to be true, was considered and decided. But when true and false statements are blended or intermingled in the exceptions as tendered, the presiding judge is under no obligation to sift out the truth from the falsehood, and may properly disallow the whole bill of exceptions as not conformable to the truth.

The case before us is an action of tort in the nature of trover for the conversion of a boiler, bought and set up by an only son in a building erected by him on the land of his father. The plaintiff claimed title under a chattel mortgage from the son. The defendants contended that the boiler was part of the land, and had passed with it by an earlier mortgage from the father to a savings bank.

The defendants’ exceptions relate, 1. to the admission in evidence of mortgages from the son to other persons-of other machinery in the same building as personal property; 2. to the effect of the original placing of the boiler by the son on his father’s land; 8. to the effect of the mortgage of the land by the father, with the assent of the son, to the bank.

1. The bill of exceptions tendered states that the other mortgages were admitted for the purpose of showing that the son had treated the machinery, put by him in the mill, as his personal property. It omits to' state, what appears by the commissioner’s report to be the truth, that those mortgages, when first offered, were excluded ; that they were ultimately admitted for the sole purpose of contradicting the testimony of the son, and after he had been asked whether he had not made written declarations to other parties that this property was personal property ; and that the judge instructed the jury that the other mortgages were not evidence of the fact that the boiler was personal property, but were only admitted to contradict the witness. In short, the bill of exceptions untruly states the rulings of the court, and the state of the evidence at the time the rulings were made.

2. Upon the question of the effect of the original placing of the boiler by the son on the land of the father, the statement, both of the evidence and the rulings, is also wide of the truth. The bill of exceptions omits an important portion of the evidence, as recited in the certificate of the judge, and reported by the commissioner ; and it states that the rulings requested on this part of the case were all refused, whereas it appears by the commissioner’s report that they were given in substance, or with slight modifications. Indeed, the defendants’ counsel at the argument waived his exceptions to all the rulings and refusals upon this subject, except to the alleged refusal to give one instruction requested, marked by the commissioner as B. 2. But even upon that the bill of exceptions fails to conform to the truth; for it merely states that upon the fact therein supposed the judge declined to instruct the jury that “ there is no implication that the boiler remained the personal property of the son; but the implication, if any, is that it became realty; ” and fails to state that the judge did rule that that fact did not authorize the implication that it was personal property, nor did it authorize the implication that it was real estate.

3. Upon the subject of the mortgage of the land by the father with the assent of the son, to the savings bank, it is unnecessary to consider the effect of the inaccuracy in the report of the testimony of the treasurer, of the variation between the requests as actually presented to the judge and as stated in the bill of exceptions, or of the including, in some of them, of recitals of evidence. It is sufficient to say that the request upon this point, found by the commissioner to have been presented to the judge at the conclusion of his charge, is not stated in the bill of exceptions as tendered; and that all those which are stated therein form part of one series of.requests presented to the judge as he rose to charge the jury, in which the requests as to the effect of the mortgage to the bank are so intermingled with those upon the effect of the original setting of the boiler on the land, that the whole series, and the rulings and instructions of the judge upon the matters which it embraces, must be treated as one subject, the exceptions relating to which must, so far as the question of their conformity with the truth is concerned, stand or fall together.

For these reasons, we are of opinion that the whole bill of exceptions was rightly disallowed. In order to guard against misunderstanding, it is proper to add that we have great doubt whether, upon the commissioner’s report of the facts and circumstances attending the presenting of the requests for instructions and the rulings upon the subject of those requests, there is anything which could in law be permitted to control the explicit certificate of the judge that no exception was taken to the refusal to give the instructions requested. But as, aside from this, the bill of exceptions is not conformable to the truth, we need not further consider that question. Petition dismissed.