White v. Hale

94 N.E. 259, 208 Mass. 94, 1911 Mass. LEXIS 768

Opinion

Sheldon, J.

The motion to recommit the auditor’s report was addressed wholly to the discretion of the justice before whom it was heard. This has been so recently decided that it is unnecessary to do more than refer to the case of Tobin v. Kells, 207 Mass. 304. The renewal of this motion before the judge who tried the case without a jury comes under the same rule. His action was not a subject of exception. And here, as in the case cited, we do not know what facts, if any, were agreed or proved at the hearing of either of these motions.

The auditor’s report was prima facie evidence (R. L. c. 165, § 55), and justified the finding made at the trial. If the defendant thought that any of the findings of fact or rulings of law made by the auditor were wrong, he had full opportunity to put in evidence of the facts and raise the questions at law at the trial. See Fisher v. Doe, 204 Mass. 34.

Exceptions overruled and orders affirmed.