Emsheimer ( 1967 )

This is a petition to establish the truth of exceptions set forth in the second edition of a so called “Plaintiff’s Amended Substitute Bill of Exceptions.” G. L. c. 231, § 117 (as amended through St. 1960, c. 207, § 4). The petitioner’s right is limited to the bill of exceptions as originally filed with any amendments allowed by the trial judge. Graustein, petitioner, 304 Mass. 679. It is apparent from the petition that the bill included in it is not the one originally filed, and that the so called “amended substitute bill of exceptions” was never allowed as an amendment to it. No copy of the original bill is contained in the petition. In disallowing the exceptions the trial judge stated that five bills had been presented, the last four after suggestions from him. Upon his findings, which have the effect of prima facie evidence, Maguire, petitioner, 340 Mass. 12, 14, and upon the commissioner’s report, which confirms and does not rebut that evidence, there was no compliance with the requirement of G. L. (Ter. Ed.) c. 231, § 113, that “exceptions shall be reduced to writing in a summary manner.” This is a condition precedent to allowance. Graustein, petitioner, 305 Mass. 568, 569. The single justice rightly dismissed the petition.

Exceptions overruled.