273 Mass. 122 | Mass. | 1930
These exceptions relate to the allowance of the plaintiff’s motion to dismiss a bill of exceptions filed and allowed -touching the trial of the case on its merits. The ground of the motion to dismiss was that the defendant had neglected to take the necessary measures for prosecuting the exceptions. The case at bar is governed by G. L. c. 231, § 135, whereby it is required that exceptions be entered in the full court “as soon as may be after” their allowance. St. 1929, c. 265, §§ 1 and 8, had not become operative at the time of the events here under review.
The defendant has filed a petition for the late entry of his appeal under G. L. c. 211, § 11, whereby it is provided that, if “by accident or mistake” exceptions have not been duly entered, the full court upon petition filed within one year after the exceptions should have been entered may allow the exceptions to be . entered. It was stated at" the bar in behalf of the petitioner that the petition was submitted upon the facts disclosed in the bill of exceptions to the allowance of the motion to dismiss. Those facts have already been stated. They do not establish either accident, Hurley v. O’Sullivan, 137 Mass. 86, 89; Henderson v. Travelers Ins. Co. 262 Mass. 522, 525; Chicago, St. Louis & New Orleans Railroad v. Pullman Southern Car Co. 139 U. S. 79, 86; Fenton v. J. Thorley & Co. Ltd. [1903] A. C. 443, 448, 453, or mistake, Wheaton Building & Lumber Co. v. Boston, 204 Mass. 218, 226; Fells’s Case, 226 Mass. 380; Porter v. Spring, 250 Mass. 83, 86, 87;
It may be added that the bill of exceptions has been examined. It presents no substantial or doubtful question of law.
Motion to enter appeal late denied.
Exceptions overruled.
See amended form in St. 1931, c. 219, enacted after this opinion was filed. Reporter.