Brown v. Learmouth , 228 Mass. 417 ( 1917 )

Braley, J.

The report recites that the defendant introduced “evidence tending to show that the plaintiff was in default of payment upon principal and interest on the second mortgage, and interest upon the first mortgage,” and the trial judge so found. The plaintiff’s contention is that these findings are unwarranted. But, all the evidence not being reported, we are unable to say as matter of law that the findings should be set aside. American Malting Co. v. Souther Brewing Co. 194 Mass. 89. Cohen v. Longarini, 207 Mass. 556. Savage v. Collins, 211 Mass. 472.

•It is also urged that the foreclosure is invalid because no legal notice was published. The language of the power of sale does not appear. The mortgaged premises were situated in the town of Medway in Norfolk County, and the judge has found that notice of the sale was duly published in the Dedham Transcript, a newspaper printed at Dedham, the county seat. If it be assumed in favor of the plaintiff, on whom the burden rests to show he has been prejudiced, that the power called for publication in some newspaper published in the town where the land lay, the finding is, that the West Medway Gazette is published at Milford in the county of Worcester, and the ruling that the publication in the Transcript was sufficient, is in accordance with R. L. c. 187, § 14, and St. 1912, c. 360. Rose v. Fall River Five Cents Savings Rank, 165 Mass. 273.

Nor does any error of law appear in the denial by the Appellate Division of the plaintiff’s motion to have the report of the trial judge so amended as to incorporate certain requests for rulings alleged to have been seasonably proffered and saved. It was for that court to determine whether the plaintiff had complied with its thirty-seventh rule, that "Requests for rulings in the trial of causes shall be in writing and presented to the court before the .closing arguments unless special leave is given to present further requests later.”

The plaintiff’s motion for a new trial was addressed to the discretion of the trial judge, even if by his second report he gave the plaintiff an opportunity to review his action before the appellate tribunal, which dismissed both reports.

The plaintiff having failed to show error the entry'must be

Order dismissing reports affirmed.