McGonigle

57 N.E.2d 926, 317 Mass. 262, 1944 Mass. LEXIS 849

• Court: Massachusetts Supreme Judicial Court
• Decided: November 29, 1944
• Status: Published

Opinion

Qua, J.

This is a petition under G. L. (Ter. Ed.) c. 231, § 117, to establish the plaintiff’s exceptions directed to an order of the trial judge that judgment be entered for the defendant in the case of McGonigle v. Reynolds. A jury trial had resulted in a verdict for the plaintiff. The judge reserved leave to enter a verdict for the defendant in accordance with G. L. (Ter. Ed.) c. 231, § 120. The plaintiff did not file any bill of exceptions within twenty days after the verdict. G. L. (Ter. Ed.) c. 231, § 113. She was obliged to do this, if she wished to preserve any exceptions she might have taken at.the trial, even though the verdict at the trial was in her favor. The twenty days period in § 113 still refers to twenty days after the verdict of the jury just as it did before the enactment of the provisions relating to the entry of a verdict by the judge under leave reserved. St. 1911, c. 212, § 1. St. 1915, c. 185, § 1. See Vallavanti v. Armour & Co. 264 Mass. 337; Atlas Mortgage Co. v. Tebaldi, 304 Mass. 554, 555. Later, in the absence of counsel, but after hearing, the judge entered a verdict for the defendant on the leave reserved. Thereupon the case became ripe for judgment for the defendant, subject only to the plaintiff’s right to take an exception to the judge’s order entering the verdict on leave reserved within the three days after the receipt of notice of that order allowed by Rule 72 of the Superior Court (1932). But the plaintiff failed to take such exception. The case therefore became fully ripe for judgment and went to judgment for the defendant automatically on the first judgment day after the expiration of the three days. G. L. (Ter. Ed.) c. 235, § 1. Rule 79 of the Superior Court (1932). An intervening extension of the time for filing a bill of exceptions did not forestall the automatic judgment, since it is plain that a condition precedent to any valid bill of exceptions attacking the verdict entered by the judge on leave reserved, to wit, the taking of an exception within the time allowed, had not been performed. Hacking v. Coordinator of the Emergency Relief Department of New Bedford, 313 Mass. 413. After the automatic judgment all further proceedings in the case, including the petition to. establish the bill of exceptions now before us, were futile and of no effect. It was proper, however, for the judge to order the actual physical entry of the judgment which had already in theory taken place automatically. J

D .... ,. ■ , Petition dismissed.