Given v. Johnson

100 N.E. 369, 213 Mass. 251, 1913 Mass. LEXIS 955

• Court: Massachusetts Supreme Judicial Court
• Decided: January 13, 1913
• Status: Published

Opinion

By the Court.

An appeal in a proceeding at law brings before this court only the record. If it be assumed in favor of the petitioner that his requests for rulings with the marginal note of refusal were incorporated into the letter of the judge by which he ordered the petition dismissed, this was no part of the record. It has been decided many times that even a memorandum signed by a judge in an action at law is not a part of the record unless inserted in a bill of exceptions or report. Cressey v. Cressey, ante, 191. Regal v. Lyon, 212 Mass. 230, and cases cited in each opinion. There is no error apparent upon this record. If the petitioner seasonably presented pertinent requests for rulings, and the trial judge either refused them or made an adverse finding without passing upon them, his remedy was by talcing exceptions at the time and filing a bill of exceptions within a proper time thereafter. John Hetherington & Sons v. William Firth Co. 210 Mass. 8, 17. Hurley v. Boston Elevated Railway, 213 Mass. 192. But the petitioner took no exception, nor did he file any bill of exceptions. He did nothing except to make a request that the judge pass upon his requests for rulings, which apparently the judge already had done, and that he make findings of fact, which the judge was not required to make by any rule or practice. O’Neill v. County of Worcester, 210 Mass. 374, 377. The judgment was entered rightly.

Judgment affirmed.