Day

125 N.E. 846, 234 Mass. 576, 1920 Mass. LEXIS 661

• Court: Massachusetts Supreme Judicial Court
• Decided: January 22, 1920
• Status: Published

Opinion

Rugg, C. J.

It is alleged in this petition that certain exceptions, duly saved by the petitioner in the course of a trial in the Superior Court, were reduced to writing and seasonably filed, that due notice of the filing was given to the adversary party and that thereafter the exceptions were dismissed upon motion on the ground that the petitioner had given no sufficient notice of the filing of the exceptions. These allegations do not come within the terms of R. L. c. 173, § 110, which govern proceedings for the establishment of exceptions to the effect that “the truth of the exceptions presented may be established” when the judge disallows or fails to sign and return the exceptions. No question is raised on this petition as to the truth of every statement in the bill of exceptions as filed. Whether notice of the filing of the exceptions was given seasonably or at all is a question of fact on which it is the duty of the judge to make a finding. His finding in that particular cannot be reviewed in this form of proceeding. If he commits any error of law in reaching his conclusion, it can be brought before this court for correction either by certificate of the presiding judge stating the material facts, Conway v. Callahan, 121 Mass. 165, Browne v. Hale, 127 Mass. 158, 161, Spofford v. Loveland, 130 Mass. 6, Purcell v. Boston, Halifax, & Prince Edward Island Steamship Line, 151 Mass. 158, or by bill of exceptions, Hurley v. Boston Elevated Railway, 213 Mass. 192. Chertok v. Dix, 222 Mass. 226. Murch v. Clapp, 228 Mass. 569. See Moneyweight Scale Co., petitioner, 225 Mass. 473. Those forms of procedure afford ample remedy against any erroneous ruling of law made in that connection.

Petition dismissed.