RILEY v. BRUSENDORFF

Practice, Civil, General appearance, Exceptions, Rulings and instructions. Rules of Court.

A motion to dismiss an action on the ground that the writ was entered too late, made upon a special appearance for the defendant, is waived by the filing of a general appearance for the defendant by an authorized attorney.

Under Rule 46 of the Superior Court, where a judge who has heard a case without a jury and who was asked by the defendant to rule that upon all the evidence the finding should be for the defendant, files a finding for the plaintiff in the absence of counsel, and nineteen days thereafter the defendant files a bill of exceptions stating an alleged exception to the ruling and finding of the judge that has not been taken previously, this is not the taking of an exception.

The allowance by a judge who has presided at a trial of a document purporting to be a bill of exceptions cannot give life to an exception that was not taken.

Where at the trial of an action of contract, upon the general issue whether the contract was made and performed as alleged, there is direct and categorical testimony in support of the plaintiff's allegations, a judge before whom the case is tried without a jury must refuse to rule as matter of law that the finding should be for the defendant, because it is purely a question of fact whether the testimony of the plaintiff's witnesses, which, if believed, requires a finding for him, is trustworthy.

RUGG, C.J.

It is not necessary to decide whether there was an exception saved to the denial of the motion to dismiss. That motion related solely to a late entry of the writ. Before that motion was heard a general appearance had been entered for the defendants by a member of the bar. That cured whatever defect there was, if any, in the entry. A general appearance waives formal defects as to the getting of the defendant before the court. Henry v. Sweeney, 216 Mass. 112, and cases there collected. Hazard v. Wason, 152 Mass. 268, 270. Hyde Park v. Wiggin, 157 Mass. 94, 97. The authority of the attorney in this respect was not disputed and is not now open to question. Norwood v. Dodge, 215 Mass. 351.

The case was tried by a judge without a jury. The bill of exceptions states that "The defendants asked the court to rule that upon all the evidence the finding should be for the defendants. The court, on April 21, 1916, found for the plaintiff; to which refusal and finding the defendants except by filing this bill May 10, 1916." On this record it does not appear that any exception was saved to this refusal to rule. There is a plain distinction between taking an exception and filing a bill of exceptions. The exception must be saved according to common practice in a case tried before a judge and decided in the absence of counsel, within a reasonable time after the ruling is made. Now under Rule 46 of the Superior Court, which was in effect when this trial took place, having been established as of the first Monday of January, 1916, a written statement of exceptions must be filed in the clerk's office within three days after receipt of notice from the clerk of the order, ruling or decision to which exception is taken. The filing of the bill, if no exception had been taken before and that was the only taking of the exception, was not a taking of the exception within a reasonable time or within three days after notice of the ruling even though the bill of exceptions was filed within the legal time, provided an exception had been taken seasonably. Graves v. Hicks, 194 Mass. 524. Hurley v. Boston Elevated Railway, 213 Mass. 192. The bill of exceptions has been allowed unqualifiedly by the presiding judge including the refusal to give the ruling. The allowance of a paper in the form of exceptions cannot give life to an exception which has not been taken. Herrick v. Waitt, 224 Mass. 415, 417. It would seem that upon the face of the bill of exceptions it ought to have been disallowed so far as relates to this exception because no exception was taken within the time allowed by the law. It has been a common practice for the presiding judge, in cases of doubt whether a bill of exceptions ought to be allowed, to set forth the facts in a certificate and then allow the exceptions subject to the opinion of this court upon the question of law thus presented, or, as is sometimes said, so far as upon the facts he has power to allow them as matter of law. Cooney v. Burt, 123 Mass. 579. Hector v. Boston Electric Light Co. 161 Mass. 558. Richards v. Appley, 187 Mass. 521, 522. Davis v. Cress, 214 Mass. 379, 382. Thurston v. Blunt, 216 Mass. 264. Kennedy v. Hub Manuf. Co. 221 Mass. 136. Matter of Carver, 224 Mass. 169, 171.

But, if it could be assumed in favor of the defendants that an exception was taken within a reasonable time to the refusal to rule as requested, it is plain that there was no error in law in denying the request. The question at issue was whether there was a contract to pay the plaintiff a commission as broker on a sale. There was direct and categorical testimony in support of the plaintiff's contention. Whether it was trustworthy or not was a pure question of fact.

Exceptions overruled.