279 Mass. 81 | Mass. | 1932
There are here three proceedings. The first is a petition for a writ of mandamus. Ancillary to that petition is a suit in equity. The third is a petition for leave to enter exceptions late in the mandamus case. The mandamus case was referred to an auditor who filed a report dealing at length with all the issues involved. The case then came on to be heard before a single justice who found the facts set forth in the auditor’s report to be true with certain modifications, dealt with numerous requests for rulings presented by both parties, and ordered the petition dismissed but not as matter of discretion. The petitioner filed a bill of exceptions which was allowed on June 11, 1931. Late in September, 1931, the respondents filed a motion to dismiss the bill of exceptions for.failure to prosecute as required by law. That motion was heard by another justice who found the material facts in substance as follows: Shortly before June 8, 1931, counsel for the petitioner indicated at the office of the clerk of courts the papers in his
It is plain that no appeal lies from such an order. The proper method of seeking revision by the full court of a decision or ruling by a single justice in an action at law is by a bill of exceptions. Channell v. Judge of the District Court, 213 Mass. 78. Cote v. Judge of the District Court, 225 Mass. 123.
The petitioner also filed a suit in equity seeking special equitable relief in aid of the petition for a writ of mandamus. That suit in equity was dismissed with costs by final decree. Since the petition for writ of mandamus is
The petitioner has filed a petition for leave to enter its exceptions late under G. L. c. 211, § 11. By that section provision is made whereby this court may, within one year after a bill of exceptions should have been entered, allow the excepting party to enter his bill of exceptions if he has failed to do so seasonably “by mistake or accident.” The ground upon which the petitioner seeks relief in this respect, in brief, is as follows: It contends that, because the assistant clerk of courts did not send to counsel for the petitioner an estimate of the expense of the printing and preparation of papers necessary to present the case to the full court, the obligation to make the requisite deposit to cover that expense never came into being, and that thus through accident or mistake the entry of exceptions was not made.
The relevant statute is G. L. c. 231, § 135, as most recently amended in its second paragraph by St. 1931, c. 219. Its governing words are that, in order to present to the full court exceptions in a case like the present, the petitioner, being the party having the obligation to cause the necessary papers to be prepared, “shall give to the clerk . . . within ten days after the case becomes ripe for final preparation and printing of the record for the full court, an order in writing for the preparation of such papers and copies of papers . . . v As soon as may be after receiving such written order, the clerk or other official shall make an estimate of the expense of the preparation and transmission of the necessary papers and copies of papers aforesaid and shall give such party notice in writing of the amount of such estimate. Such party, within twenty days after the date of such notice from the clerk . . . shall pay to him the amount of such estimate.”
As we understand it, the petitioner contends that although the estimate in writing was sent to its counsel on June 10, 1931, in response to his request for the same, after he had sent to the clerk a substitute bill of exceptions, yet because the substitute bill of exceptions was not actually allowed until the following day the estimate sent on the day before
There is nothing to this contention. The petitioner and its counsel were given all information that was required and in the form specified in the statute. The petitioner cannot compel the clerk of courts to go through such duplication of work. There was no accident or mistake. Wiakowicz v. Hwalek, 273 Mass. 122, 124, and cases cited. On the contrary, the most that can be said is that there has been a failure to succeed in highly technical procedure. Alpert v. Mercury Publishing Co. 272 Mass. 43, 45.
It is the established practice not to grant applications for late entry under the statute here invoked unless it appears that the petitioning party has a case meritorious or substantial in the sense of presenting a question of law deserving judicial investigation and discussion. Lovell v. Lovell, 276 Mass. 10, and cases there collected. There is no merit in the petitioner’s bill of exceptions. The case is quite distinguishable from Dondis v. Lash, 277 Mass. 477.
Appeal dismissed.
Decree affirmed.
Petition denied.