Day v. McClellan

Rugg, C. J. This bill of exceptions relates to the action of a judge of the Superior Court in allowing a motion to dismiss a bill of exceptions, filed respecting the trial of the case on its merits, on the ground that the excepting party failed to give to the adverse party written notice of the filing of the exceptions as required by Rules 52 and 28 of the Superior Court (1915). A motion to dismiss exceptions on that ground is correct procedure. It has been followed in so many cases without question that the practice must be treated as settled. Only a few need be cited. Conway v. Callahan, 121 Mass. 165. Baron v. Fitzpatrick, 167 Mass. 417. Shawmut Commercial Paper Co. v. Brigham, 209 Mass. 199. Foley v. Talbot, 162 Mass. 462. Murch v. Clapp, 228 Mass. 569. On reason the practice is sound. A matter on the files and yet not properly before the court ordinarily is dismissed and not considered on its merits. DeBang v. Scripture, 168 Mass. 91. Corbett v. Boston & Maine Railroad, 219 Mass. 351, 356. Cases are to be found where the exceptions have been disallowed on this ground. Harrington v. Tykeson, 182 Mass. 584. See [332] Doherty v. Phoenix Ins. Co. 224 Mass. 310, 312. Nevertheless, the usual course is to move to dismiss. The rules of the Superior Court requiring notice in writing to the adverse party of the filing of exceptions is well within the power of that court under R. L. c. 158, § 3; c. 173, § 106, as amended. Blair v. Laflin, 127 Mass. 518. The contention of the plaintiff that such rules of court and the practice of dismissal of exceptions for want of compliance therewith violates his constitutional rights is so plainly without foundation as to require no discussion. It is a simple rule of common sense directed to the promotion of orderly procedure and to the prevention of disputes and delays. Whether the notice was given or not was a question of fact as to which the finding of the judge is final. Broomfield v. Sheehan, 190 Mass. 585. Murch v. Clapp, 228 Mass. 569. The giving of a copy of the exceptions is not of itself notice. Chertok v. Dix, 222 Mass. 226. Whether there had been a waiver by the adverse parties of their right to insist upon compliance with the rules was upon this record a pure question of fact. Its determination depended upon the conflicting evidence shown in affidavits. The finding of waiver was not required as matter of law. Chertok v. Dix, 222 Mass. 226. There was ample evidence to support all findings of fact made by the judge. There was no error of law in denying the several requests of the plaintiff for rulings of law. Exceptions overruled.