Koch

225 Mass. 148

• Court: Massachusetts Supreme Judicial Court
• Decided: November 23, 1916
• Status: Published

Opinion

Hugo, C. J.

This is a petition to establish exceptions. The respondent, the plaintiff in the original action, moves that the petition be dismissed on the ground that it is apparent upon a cursory examination of the exceptions as filed that no substantial question of law is involved. The action is in contract. It was referred to an auditor with an agreement by the parties that his findings of fact should be final. The auditor’s report was in favor of the plaintiff. Thereafter, the plaintiff moved that the report be confirmed and that judgment be rendered against the defendants. The defendants, the present petitioners, moved that the report be recommitted to the auditor because he did not show that an objection had been made to the introduction in evidence of a certain letter, whereas in truth such objection had been made, and that the auditor, although requested to make a statement of such ruling in his report, had not done so. St. 1914, c. 576, § 2, amending R. L. c. 165, § 55. The judge denied the motion of the defendants and granted that of the plaintiff. To this action an exception was taken, and this is the only exception alleged in the bill.

This exception raises no question of law. The certificate of the Superior Court judge in disallowing the exceptions, the truth of which in this respect is not disputed by the petitioners, shows that the facts stated in their motion were not verified by affidavit, were not supported by any evidence and were not admitted by the opposing party. Under these circumstances it is too clear for discussion that the granting of the motion to recommit the case to the auditor rested wholly in the discretion of the judge. Randall v. Peerless Motor Car Co. 212 Mass. 352, 372.

Since no substantial question of law is set forth in the bill of exceptions as filed and disallowed, the parties and the Commonwealth ought not to be put to the expense of a hearing on the petition to establish the exceptions, but the petition should be dismissed. Bishop, petitioner, 208 Mass. 405, 407.

So ordered.