Mulrey v. Carberry , 207 Mass. 390 ( 1911 )

Knowlton, C. J.

The story of this case was pretty fully told in Mulrey v. Carberry, 204 Mass. 378. That case was a petition for a bill of review, and it was decided by this court in favor of the petitioners. The present bill of exceptions is to rulings of law on the trial upon the bill of review, admitting in evidence the report of the proceedings at the trial in the original suit, made by an official stenographer of the Superior Court, and other kindred matters of proof.

The petition for a bill of review was addressed to the discretion of the court, and was founded upon matters that did not appear of record in the Superior Court after the hearing before the justice who made the decision. The defendants in the original suit appealed from the decree, and afterwards, when they were about to present to- this court the record of the proceedings, they discovered that the stenographer who was appointed a commissioner to take the testimony at the original hearing, and whose report would be for that reason a part of the official record, did not take the testimony at a subsequent hearing which was important to the rights of the defendants, and that another stenographer then acted in his place. As a result, a part of the proceedings, which was reported by this stenographer, was not a part of the record in the case. The defendants moved to have this stenographer appointed a commissioner nunc pro tune, but the motion was denied, and the defendants appealed. As the case first came to this court (see 192 Mass. 547) it did not appear that there was any error of law in the proceedings, nor was it shown that there was any error of fact that required a reversal of the decree.

Upon the petition for a bill of review, the petitioners averred facts which, for the purposes of the hearing, were admitted by the respondents to be true, and which showed that the decree was founded on an error of law. These facts did not appear of record, and they did not relate to matters which ought to have been put in evidence but were not. They related to proceedings before the court, and to matters that ought to have appeared in the record, but did not. The only question of doubt, that arose upon the petition for a bill of review, was whether the failure to protect the rights of the original defendants and have the record show all the material facts was so far imputable to negligence of their counsel as to make it improper to grant their petition. Upon a consideration of this question the decision of the court was, that the omission resulted from an oversight and mistake, which ought not to prevent the defendants from showing, upon a bill of review, what the proceedings were at the hearing.

The mistake of the counsel of the defendant, in the present proceeding, is in treating this as a bill to correct errors of law upon the face of the record, which the plaintiffs might prosecute as a matter of right, instead of a bill issued in the sound discretion of the court, upon a petition to permit the plaintiffs to show what occurred at and after the trial that prevented them from presenting the questions of law on their original appeal. This distinction sufficiently appears in Elliott v. Balcom, 11 Gray, 286, Richardson v. Lloyd, 99 Mass. 475, and 16 Cyc. 524-534. The principle applicable in the present case is the same as that which governs bills of review founded on newly discovered evidence. The evidence objected to was rightly admitted. R. L. c. 175, § 68. Mulrey v. Carberry, 204 Mass. 378.

Exceptions overruled.