Cressey v. Cressey

99 N.E. 972, 213 Mass. 191, 1912 Mass. LEXIS 698

• Court: Massachusetts Supreme Judicial Court
• Decided: November 27, 1912
• Status: Published

Opinion

Rtjgg, C. J.

This case is not before us properly. It is a petition for partition. A hearing was had before a judge of the Superior Court,

* who filed a careful statement of the whole case and of his conclusions, entitled “Findings by the Court.” This was a finding of the material facts and his rulings of law upon them. Its concluding words were “Interlocutory judgment to be entered in accordance with the foregoing findings.” But no such judgment has been entered. Two of the respondents appealed “from the findings of the court . . . and . . . from the conclusions of the .court as expressed in said finding, and from the judgment and decree made or authorized by said findings.”

A bare memorandum by a judge sitting without a jury in a proceeding at law forms no basis for an appeal grounded on an error of law and cannot be considered as a part of the record, however useful it may be for the information of the parties and as a foundation for other steps in the case. Regal v. Lyon, 212 Mass. 230, and cases cited. Lopes v. Connolly, 210 Mass. 487, . This is a proceeding at law and not in equity, where in this respect the rule is different. Cohen v. Nagle, 190 Mass. 4.

H. R. Mayo, for the respondents Anna E. Emerson and Sarah E. Newhall. W. E. Dorman, for the respondent Charles A. Newhall. G. C. Richards, for the petitioner.

Errors of law under these circumstances can be taken advantage of only by a bill of exceptions. New York Life Ins. Co. v. Macomher, 169 Mass. 580. Findings of fact embodied in a bill of exceptions or a report of course are a part of the record. It has been settled practice for a long time that this court has no jurisdiction to consider an appeal until there has been a judgment. Cotter v. Nathan & Hurst Co. 211 Mass. 31, and cases cited.

If exceptions had been filed, even though the Case was not ripe for final judgment, they could have been considered for the reason that a petition for partition is a peculiar proceeding and a judgment for partition is in a sense final. Lowd v. Brigham, 154 Mass. 107. See also Hutchins v. Nickerson, 212 Mass. 118, 120.

The questions of law raised by the rulings upon the facts found by the judge of the Superior Court might have been brought to this court also by report under R. L. c. 173, § 105, as amended by St. 1910, c. 555, § 5.

But as the jurisdiction of this court is affected by the error in bringing the case here in this way we are compelled to send it back.

Appeal dismissed.

McLaughlin, J.