Practice, Civil, Auditor's report: motion to recommit, Exceptions: matter of discretion, petition to establish truth of. Rules of Court.
Where an action at law was referred to an auditor under an agreement of the parties that the auditor's findings of fact should be final and the auditor has filed a report in favor of one of the parties, whereupon the party against whom the finding was made moves that the case be recommitted to the auditor in order that he may insert in his report a statement of a certain ruling alleged to have been made by him, but the facts stated in the motion are not verified by affidavit nor supported by any evidence and are not admitted by the opposing party, a denial of the motion by the trial judge affords no ground for exception, the question of granting the motion under such circumstances being a matter wholly within the discretion of the judge.
Where, upon a petition to establish the truth of exceptions, it appears by an inspection of the bill of exceptions as filed and disallowed that no substantial question of law is set forth therein, the petition will be dismissed without referring it to a commissioner.
RUGG, 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.