In re Loeb

52 N.E.2d 37, 315 Mass. 191, 1943 Mass. LEXIS 937

• Court: Massachusetts Supreme Judicial Court
• Decided: December 8, 1943
• Status: Published

Opinion

Lummus, J.

The Lowell Bar Association informed the Superior Court of alleged professional misconduct on the part of the respondent, a member of the bar. Matter of Keenan, 313 Mass. 186. After a hearing, a judge of that court found that the respondent solicited law business by advertising. He made an order suspending the respondent from practice for three months. The respondent excepted to, and also appealed from, “the findings and order of the court made and filed on March 9, 1943.” The transcript of the evidence, which is the same evidence reported in the case of Lowell Bar Association v. Loeb, ante, 176, is made a part of the bill of exceptions. The respondent contends that the evidence did not warrant the findings, that the subsidiary findings did not warrant the ultimate finding of misconduct and the order of suspension, and that the penalty was too severe. On the other side, it is contended that the penalty was inadequate.

None of these contentions can prevail.

(1) The judge filed on March 9, 1943, what he called “findings and order,” which recited certain facts and ordered suspension as hereinbefore stated. The respondent appealed “from the findings and order of the court.” Disciplinary proceedings are at law, not in equity, and appellate procedure in them ordinarily is governed by the statutes regulating practice in civil actions at law as far as they are applicable. Boston Bar Association v. Casey, 227 Mass. 46, 51. Matter of Mayberry, 295 Mass. 155, 166, 167. Matter of Keenan, 313 Mass. 186, 204, et seq. The only appeal from the Superior Court known in actions at law is the one provided for by G. L. (Ter. Ed.) c. 231, § 96. Styrnbrough v. Cambridge Savings Bank, 299 Mass. 22, 23. Of the three classes of orders appealable under that section, the only one that might be thought applicable is “any order decisive of the case founded upon matter of law apparent on the record.” For the history of that section, see Keljikian v. Star Brewing Co. 303 Mass. 53. It is settled that such “findings and order” as were made and filed in this case do not, in a proceeding at law, become part of the “record” within that section. Cressey v. Cressey, 213 Mass. 191. Powdrell v. DuBois, 274 Mass. 106. Chech v. Kaplan, 280 Mass. 170, 174. Yoffa v. Shaw, 299 Mass. 516. Flint v. Wilmington, 310 Mass. 66. Watts v. Watts, 312 Mass. 442, 449, 450. Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 718. The "findings and order” were not made part of the bill of exceptions. If they had been they would not have become part of the record for the purpose of appeal (see Tyndale v. Stanwood, 186 Mass. 59, 61, 62), for when the "order decisive of the case” was made and when the appeal was claimed, the bill of exceptions had not been allowed, and consequently had not become part of the record for any purpose. The appeal must therefore be dismissed.

(2) The only exception argued by the respondent is one taken to "the findings and order of the court.” We pass by the fact that the .findings and order were not expressly made a part of the bill of exceptions, and treat the case as though they were. Where the subsidiary facts are conceded or otherwise established, and all that remains is to draw the ultimate inference of fact and to apply the law, an exception to the general or ultimate finding opens the question whether it was warranted on the subsidiary facts. Leshefsky v. American Employers’ Ins. Co. 293 Mass. 164, 166, 167. Gaw v. Hew Construction Co. 300 Mass. 250, 252. Federal National Bank v. O’Connell, 305 Mass. 559, 564, 565. Sreda v. Kessel, 310 Mass. 588, 589, 590. That rule does not apply to the question whether the evidence warranted the findings in the present case. Some of the subsidiary facts were disputed. Apart from the exceptional rule of the Leshefsky case, an exception to a finding does not present the question whether it was warranted by the evidence. Stowell v. H. P. Hood & Sons, Inc. 288 Mass. 555. Forbes v. Gordon & Gerber, Inc. 298 Mass. 91, 94, 95. Ross v. Colonial Provision Co. Inc. 299 Mass. 39, 41. Baker v. Davis, 299 Mass. 345, 348, 349. Looby v. Looby, 303 Mass. 391, 392. Carney v. Cold Spring Brewing Co. 304 Mass. 392, 396. Federal National Bank v. O’Connell, 305 Mass. 559, 565. Lakeville v. Cambridge, 307 Mass. 433, 435. Sreda v. Kessel, 310 Mass. 588, 589. James B. Rendle Co. v. Conley & Daggett, Inc. 313 Mass. 712. Langdoc v. Gevaert Co. of America, Inc., ante, 8. The exception to the findings, so far as it attacks the sufficiency of the evidence to support them, must be overruled.

(3) The respondent contends that the same exception opens the question whether the finding of professional misconduct was warranted in law upon the subsidiary findings recited in the “findings and order.” It may be questioned whether this contention is open upon an exception so general in its terms. An exception must call to the attention of the judge the particular error alleged, in order that if possible he may correct it. In this case, if the point had been called to the attention of the judge, he might have made further express findings of fact. Anderson v. Beacon Oil Co. 281 Mass. 108. Trustees of Boston University v. Commonwealth, 286 Mass. 57, 65. Mitchell v. Lynn Fire & Police Notification Co. Inc. 292 Mass. 165, 168. Sylvia v. New York, New Haven & Hartford Railroad, 296 Mass. 157, 164. Alfred J. Silberstein Inc. v. Nash, 298 Mass. 170, 174. Tucker v. Ryan, 298 Mass. 282, 284. O’Connor v. Benson Coal Co. 301 Mass. 145, 150, 151. Beebe v. Randall, 304 Mass. 207, 209. Kolasinski v. Paczkowski, 307 Mass. 73, 76. Kurland v. Massachusetts Amusement Corp. 307 Mass. 131, 143. McKay v. Polep, 311 Mass. 567, 571.

But let us assume, without deciding, that the contention is open. The case is not like an appeal in equity with a report of material facts made by the judge pursuant to the duty imposed on him by G. L. (Ter. Ed.) c. 214, § 23, or c. 215, § 11. In such a case the facts reported are taken to be all the facts upon which the decree was based, and if they do not support the decree it must be reversed, unless the evidence reported shows that it was nevertheless right. Topor v. Topor, 287 Mass. 473, 476. Birnbaum v. Pamoukis, 301 Mass. 559, 562. Viens v. Viens, 302 Mass. 366, 367. Castle v. Wightman, 303 Mass. 74, 76. Sullivan v. Quinlivan, 308 Mass. 339, 340, 341. Sidlow v. Gosselin, 310 Mass. 395, 397. Wiley v. Fuller, 310 Mass. 597, 599. Bernhardt v. Atlantic Finance Corp. 311 Mass. 183, 185. Hinckley v. Barnstable, 311 Mass. 600, 602. Colby v. Callahan, 311 Mass. 727. 728.

This is a proceeding at law. On the law side of the court a judge cannot be required to make any express findings of fact.¹ John Hetherington & Sons, Ltd. v. William Firth Co. 210 Mass. 8, 17-19. Castano v. Leone, 278 Mass. 429, 431. Ashapa v. Reed, 280 Mass. 514. Graustein v. Dolan, 282 Mass. 579, 583. Memishian v. Phipps, 311 Mass. 521, 523. Codman v. Beane, 312 Mass. 570, 574. Compare Perry v. Hanover, 314 Mass. 167, 172. It is discretionary with him whether to make any express findings or not, and whether to state all the facts found or only part of them. His findings are not to be taken as including all the material facts unless they purport to do so. Unless they purport to be a complete statement of the case, the rule still applies that the decision or decree imports a finding of every fact necessary to sustain it not expressly negatived. Birnbaum v. Pamoukis, 301 Mass. 559, 561. Povey v. Colonial Beacon Oil Co. 294 Mass. 86, 90. Wilkins v. Berkeley Realty Corp. 311 Mass. 148, 151. Watkins v. Briggs, 314 Mass. 282, 284, 285.

In this case, near the end of his “findings and order,” the judge found expressly that the business of making out simple income tax returns was the practice of law, and that the respondent as proprietor solicited patronage for that business by advertising. That finding was not warranted by the evidence and was erroneous as matter of law. Lowell Bar Association v. Loeb, ante, 176. If that finding is the sole foundation for the order of suspension, when that foundation falls the order must fall with it. If that finding was the sole foundation for the order of suspension, we assume without deciding that the general exception taken would raise the question and would have to be sustained. Leshefsky v. American Employers’ Ins. Co. 293 Mass. 164, 166, 167. Gaw v. Hew Construction Co. 300 Mass. 250, 252. In this proceeding at law it would be impossible for us to support the order of suspension by finding upon the evidence another foundation of fact upon which it could rest, as we did in the related equity case just decided. Lowell Bar Association v. Loeb, ante, 176. At law this court can find facts only in certain exceptional instances provided for by statute. Moss v. Old Colony Trust Co. 246 Mass. 139, 143. Jones v. Clark, 272 Mass. 146, 149. Cambridge v. West Springfield, 303 Mass. 63, 66. Real Properties, Inc. v. Board of Appeal of Boston, 311 Mass. 430, 441, 442. Exceptions exist as to capital cases (G. L. [Ter. Ed.] c. 278, § 33E, as amended by St. 1939, c. 341), as to cases stated, (United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105, 108, 109; Harsha v. Bowles, 314 Mass. 738, 739-740), and as to appeals in certiorari (G. L. [Ter. Ed.] c. 213, § 1D, inserted by St. 1943, c. 374, § 4).

Assuming that the point is open, the decisive question therefore is, whether the order of suspension appears to have been based exclusively on the erroneous finding that making out simple income tax returns is the practice of law. After making that finding, the judge concluded his “findings and order” with these words: “In consequence of the foregoing an order may be entered suspending the respondent from all practice of the law throughout the Commonwealth for a period of three months.” By the “foregoing” we think he referred to the entire “findings and order.” Some of the subsidiary facts found in it would have been superfluous if he had intended to rest his order wholly upon the finding that the making out of the tax returns was the practice of law. Some findings relate to the point that the American Tax Service promised patrons the services of counsel, and that the “legal counsel” was the respondent. We think that the order of suspension imported the finding of all facts necessary to sustain it, at least all those referred to in the “findings and order.” That facts sufficient to sustain it could have been found upon the evidence was in substance decided in Lowell Bar Association v. Loeb, ante, 176, which was heard upon the same evidence. Consequently the exception, so far as the contention under discussion is concerned, must be overruled,

(4) The contention of the respondent that the penalty .was too severe is not open on his bill of exceptions. Exceptions are limited to "an opinion, ruling, direction or judgment . . . rendered upon any matter of law.” G. L. (Ter. Ed.) c. 231, § 113. The penalty was discretionary, and therefore not within the scope of exceptions. Boston Bar Association v. Greenhood, 168 Mass. 169, 188. Boston Bar Association v. Casey, 196 Mass. 100, 111. Matter of Allin, 224 Mass. 9, 13. It is true that an abuse of discretion may amount to an error of law, and consequently may be open on exceptions. Long v. George, 296 Mass. 574, 578, 579. Kinnear v. General Mills, Inc. 308 Mass. 344, 348, 349. Bresnahan v. Proman, 312 Mass. 97, 101, 102. DeLuca v. Boston Elevated Railway, 312 Mass. 495, 497, 498. Peterson v. Cadogan, 313 Mass. 133, 134, 135. In this case plainly there was no abuse of discretion amounting to an error of law. Even if the question of discretion could have come before us under the more liberal practice governing appeals in equity (Long v. George, 296 Mass. 574, 579; Coe v. Coe, 313 Mass. 232, 234), we do not suggest that we should have revised the order. The exception, so far as it relates to the amount of the penalty, is overruled.

(5) The respondent, and the Attorney General and the Lowell Bar Association as well, contend that we should review the amount of the penalty upon the entire record, without regard to procedural rules. They rely upon Matter of Keenan, 313 Mass. 186. That case decides that this court, as the final authority upon matters relating to membership in the bar, has power to create new methods of review not authorized by statute. But that case recognizes that ordinarily appellate procedure in such matters follows the forms prescribed for civil actions at law as far as those forms are appropriate. That case does not hold that whenever some party to a disciplinary proceeding against a member of the bar manages to get the case before this court in some way, all statutory rules of practice disappear. We see nothing in this case to call upon us to adopt a special mode of appellate review, instead of leaving the parties to the statutory remedies of appeal and exceptions, to which the respondent has resorted, with their familiar incidents. Those remedies do not enable us to review the penalty imposed.

Appeal dismissed.

Exceptions overruled.

1 Even in equity a party has a right only to the statutory report of material facts as they rest in the mind of the judge. Plumer v. Houghton & Dutton Co. 277 Mass. 209, 214. Merrill v. Everett, 293 Mass. 327. Davis v. Newburyport Five Cents Savings Bank, 311 Mass. 377, 381, 382. A party may not require findings upon particular questions of fact selected by him. Boston v. Dolan, 298 Mass. 346, 348, 349.