Volume 1971
Article 13
1-1-1971
Chapter 10: Civil Procedure and Practice
John J. Curtin Jr.
William G. Young
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CHAPTER 10
Civil Procedure and Practice
JOHN J. CURTIN, JR.
and
WILLIAM G. YOUNG§10.1. Personal jurisdiction: Matters of substance and form. The perennial problem of distinguishing between substantive rights and matters of form was again the subject of discussion by the Supreme Judicial Court during the 1971 SuRVEY year. Basic to the idea of rea-soned justice is the principle that matters pertaining solely to proce-dural form ought not enlarge or diminish substantive rights. The principle is given effect by G.L., c. 260, §32, which provides:
If, in an action duly commenced within the time limited in [Chapter 260] . . . , the writ is abated or if the action is other-wise avoided or defeated . . . for any matter of form . . . , the plaintiff or demandant or any person claiming under him may commence a new action for the same cause within one year after the abatement or other determination of the original action.1
[Emphasis added.]
In Gifford v. Spehr,2 the Supreme Judicial Court had occasion to
define further the limits of those "matter[s] of form" that will enable a plaintiff to take advantage of the additional year that the
aforemen-tioned statute gives him for bringing his suit. In Gifford, the plaintiff claimed injuries as the result of an automobile accident in Massachu-setts involving a nonresident defendant. Three days before the expira-tion of the applicable statute of limitaexpira-tions,3 the plaintiff commenced
an action against the defendant by making service on the registrar of motor vehicles.4 Unfortunately, the plaintiff neither forwarded
a copy of the writ to the defendant promptly by registered mail nor filed an affidavit of compliance, both steps being required by G.L., c. 90, §3C. Nearly a year after the commencement of the first action against the defendant and almost a year following the expiration of the statute of limitations, the plaintiff, apparently recognizing
joHN J. CuRTIN, jR., is a partner in the firm of Bingham, Dana and Gould, Boston, and an instructor in law at Boston College Law School.
WILLIAM G. YouNG is associated with the firm of Bingham, Dana and Gould, Boston, and is an instructor in law at Boston College Law School.
§10.1. 1 Massachusetts has long had such general remedial legislation. Tlw original
predecessor to the quoted statute was St. 1770-1771, c. 9, §3.
2 1971 Mass. Adv. Sh. 127,266 N.E.2d 657.
3 The general statute of limitations for tort actions is two years. G.L., c. 260, §2A.
that no personal jurisdiction had been acquired over the defendant, discontinued her first action; the same day, in reliance upon Section 32, she commenced a second action against the same defendant. Upon motion of the defendant, the second action was dismissed as untimely brought and the plaintiff appealed. The question presented to the Court in Gifford was whether the plaintiff's failure to forward forth-with to the nonresident defendant a copy of a writ served on the regis-trar was a mere matter of form that would afford the plaintiff an addi-tional year in which to bring her suit correctly.5 The Court held that
the plaintiff's failure to send a registered mail notice to the defendant in accordance with Section 3C was a matter of substance and not a matter of form.
Discussing the notice requirement of Section 3C, Justice Cutter, for the Court, reaffirmed the holding in Nickerson v. Fales6 to the effect
that failure to give proper notice "forthwith" to a nonresident defen-dant under Section 3C would prevent a court from acquiring personal jurisdiction over that defendant. He then proceeded to explain the various cases that deal with the interplay between the notice require-ment of Section 3C and the running of the statute of limitations.7
Sec-tion 3C requires that notice to a nonresident defendant be given "forthwith" once service of the writ has been made on the registrar
5 It is to be noted that the additional year begins only "after the abatt>ment or other
determination of the anginal action, or after the reversal of the judgment." G.L., c. 260, §32. Conceivably, an action that is defective in form but brought within the statutory period could have a remarkably long afterlife. If the action were subject to abatement, for example, the defendant could wait to mark up his answer in abatement until nearly six months after the commencement of the action, and the answer in abatement itself would not be waived if heard within one year from the date the action was commenced. Mass. Super. Ct. Rule 33. Indeed, since the hearing on an answer in abatement may in-volve the taking of evidence, such hearing as a practical matter would take place before a jury-waived session of the court and not before a motions judge. In a county with a crowded docket, the hearing on an answer in abatement might actually take place more than a year after the action was commenced, even if the defendant were to comply fully with Superior Court Rule 33. If the plaintiff were to commence his action merely days before the running of the statute of limitations and the defendant did not aggressively seek a ruling upon his answer in abatement, the eventual granting of the answer in abatement may give the defendant small comfort indeed if the action is abated upon a "matter of form." In such instances, the plaintiff would then gain an additional year in which to commence suit on the same cause of action, an action which the passage of time would probably make difficult to defend.
Since neither the district courts nor the Boston Municipal Court regulate the hearing of dilatory pleas by any rule equivalent to Rule 33 of the Superior Court, an even longer period of time could elapse in the district courts before the defect in form would be brought to light and adjudicated, the plaintiff then obtaining his additional year to bring suit.
6342Mass.l94,172N.E.2d832(19~1).
7 It would seem that a discussion ~Section 3C is not essential to the resolution of the
§10.1 CIVIL PROCEDURE AND PRACTICE
207
of motor vehicles. In a case where timely notice was dispatched but was sent to the wrong person because the defendant had given the registrar an erroneous address in the accident report, the plaintiff was given the opportunity to remedy the defect,8 since the defendant had
"induced by his own conduct" the failure to reach him by registered mail.9 In instances where the plaintiff had not been misled by the defendant and the statute of limitations had run between service of the writ on the registrar and the giving of notice required by Section 3C, the question has been posed as to whether personal jurisdiction will still be exercised. In Gifford, the Court evidenced apparent approval
of Hardy 11. Green,10 a federal decision which held that notice given
to a nonresident defendant after the running of the statute of limita-tions would be adequate to confer personal jurisdiction over him where the case had begun shortly before the statute ran out and the notice followed immediately after the time limit expired. In an in-stance where the notice was not timely, however, that is, where it did not follow service upon the registrar within a reasonable time, the running of the statute of limitations has been held to extinguish the plaintiff's right to remedy the defect under G.L., c. 223, §84.11
Having reviewed and reconciled the decisions interpreting Section 3C, the Gifford Court noted generally that "[t]he decisions treat the
requirement of notice by registered mail as designed to afford the nonresident timely opportunity to defend, and also treat such notice • as [a] matter of substance essential to personal jurisdiction of the de-fendant."12 Like the plaintiff in Nickerson, Gifford had not only
restricts it to deciding cases on the narrowest possible grounds and then discussing only those elements necessary to the decision. In contrast, the Supreme Judicial Court has long considered it appropriate to comment on matters not absolutely essential to the resolution of a case before it when such comment would seem to be helpful in explicating the law. Kaye v. Newhall, 356 Mass. 300, 304, 249 N.E.2d 583, 585 (1969); City Manager of Medford v. State Labor Relations Commn., 353 Mass. 519, 524, 233 N.E.2d 310, 314 (1968); Wellesley College v. Attorney General, 313 Mass. 722, 731, 49 N.E.2d 220, 226-227 (1943). The Court in Gifford again exercised its prerogative.
8 G.L., c. 223, §84 provides: "If the se_rvice of a writ . . . is defective or insufficient,
the court or tribunal to which it is returnable may, upon motion of the plaintiff . . . issue further writs . . . which shall be served in such manner as may be therein directed; and upon due service thereof, the court . . . shall thereby acquire the same jurisdiction of the subject and of the parties as it would have obtained if such service had been made in pursuance of the original writ."
9 Cretev. Audet, 353 Mass. 725,730,234 N.E.2d 733, 736(1968). IO 277 F. Supp. 958 (D. Mass. 1967).
11 Nickerson v. Fales, 342 Mass. 194, 172 N.E.2d 832 (1961). The Nickerson Court
declared that Section 3C was the "exclusive procedure for notice" under Sections 3A to 3C of Chapter 90, and that Section 84 of Chapter 223 was not available. Gifford, however, explicitly modifies Nickerson in holding that, so long as the statute of limitations has not run, a plaintiff who discovers that he has failed to give timely notice to a nonresident defendant pursuant to Section 3C may obtain new process under Section 84 and continue to press his action. 1971 Mass. Adv. Sh. 127, 128 n.2, 266 N.E.2d 657, 659 n.2. The run-ning of the statute of limitations, however, extinguishes the right to obtain new process under Section 84.
neglected to forward a notice to the nonresident defendant "forthwith," but had also permitted the statute of limitations to run prior to at-tempting to remedy the defect. Because he was thereby foreclosed from recourse to Section 84, the plaintiff Gifford sought to remedy the de-fect by recourse to Section 32. Turning to the central issue in the case-the definition of matter[ s] of form under Section 32-case-the Court re-viewed in Gifford the various judicial attempts at classifying "form" and "substance."
In the cases pointed out by the Court where the plaintiff was afforded additional time to remedy a defect in form, the common feature was that the defendant or party to be charged had received actual notice of the pendency of the action and thus had had an opportunity to investi-gate the matter and prepare his defense. For example, where a pro-ceeding against an administrator of an estate failed because the first letter of notification was held void and, subsequently, a new letter was issued, a new action brought within one year of the failure of the first proceeding was permitted under a "saving" statute similar to Sec-tion 32.13 In another case, where a trustee writ had been abated
be-cause it had been brought in a county where neither trustee resided, the abatement was held a "matter of form," and the Court permitted the bringing of a new action.l4 In one other case discussed by the Court, an action had been brought in the wrong court; although never en-tered, the action was considered as "avoided" for "matter of form," thus permitting a new action to be brought since "the first action
notified the defendant that resort was to be made to the courts."15
(Emphasis added.)
In those instances discussed by the Court where the defects in the plaintiff's case pertained to the parties and to the subject matter, the defects were held to be of substantive import and not such as to entitle the plaintiffs to the benefits of Section 32, the Massachusetts "saving" statute. In jordan v. County Commissioners of Bristol, where a peti-tion had been brought against the Commonwealth under circum-stances where the county commissioners should have been named as the respondents, it was held that a new petition could not be brought against the commissioners upon the abatement of the original petition if the statute of limitations had run: "[T]he mistaken choice of a de-fendant unrelated to the subject matter of the case is not merely a formal error."16 Thus, in those cases where the plaintiff has chosen
to bring suit against the wrong defendant through no fault of the appropriate defendant and where the proper defendant had not been earlier apprised of the action in such fashion that he might reasonably have expected that he was the object of the suit, the plaintiff would not be permitted to substitute the appropriate party once the statute
13 Coffin v. Cottle, 33 Mass. (16 Pick.) 383 (1835).
14 Woods v. Houghton, 67 Mass. (I Gray) 580(1854).
§10.1 CIVIL PROCEDURE AND PRACTICE
209
of limitations has runY Having thus apparently reconciled the cases interpreting Section 32 on the basis of whether, in each instance, the defendant had been given adequate notice of the pendency of an action within the statutory period, the Gifford Court concluded that "an action [commenced under Section 32] which must be discontinued because of a failure to send the registered mail notice 'forthwith' is not abated 'for any matter of form' [within the meaning of that term as used in Section 32]. "IB
An analysis of the Court's opinion indicates that its holding is amply warranted where, as in Gifford, a defendant has no notice of any proceeding against him until nearly a year after the statute of limitations has run and the failure of notice has not been attributable in any way to his conduct. To permit a suit to be maintained against a defendant after such a lapse of time w,ould tend to defeat the policy considerations underlying the statute of limitations. Ironically, the
Gifford decision, which would seem to have settled the interpretation of Section 3C, comes at a time when recourse to that provision is likely to be abandoned by the practitioner in favor of the less complex ser-vice requirements of G.L., c. 223A, §6(a)(3).19 In Gifford, for example,
the nonresident defendant Spehr was subject to a personal jurisdic-tion of the Massachusetts courts because she had allegedly caused "tortious injury by an act or omission in this commonwealth."20
Under Section 6(a)(3), service upon her by registered mail would have been all that was necessary to cause her to defend the action in the Massachusetts courts. Unlike the procedure of Section 3C, which re-quires (I) service on the registrar of motor vehicles and (2) the forward-ing, forthwith, of notice to the nonresident defendant by registered mail, service under Section 6(a)(3) is a one-step procedure supported by an affidavit. The simpler form would appear to be preferable.
Matters of form and substance with respect to personal jurisdiction also merited the attention of the federal District Court for
Massachu-17 Although the above explanation serves to reconcile the Jordan case with those
cases where defects have been held to be matters of form, it is difficult to see why substi· tution of plaintiffs should not be allowed after the running of the statute of limita-tions. Although the strict language of Jordan would seem to proscribe such substitution, such a proscription does not seem to be necessary. Surely the defendant who has been sued by an improper plaintiff-e.g., by an unincorporated association, which is not a proper party under Massachusetts practice: McCormack v. Labor Relations Commn., 1971 Mass. Adv. Sh. 157, 266 N.E.2d 651; but see Massachusetts Assn. of Tobacco Dis-tributors v. State Tax Commn., 354 Mass. 85, 235 N.E.2d 557 (1968)-has been advised that resort to the courts is being had against him. Perhaps the most satisfactory rationale for the reach of the language in Jordan is that the defendant is entitled to know within the statutory period by whom he is being sued in order to prepare an adequate defense against that particular suit.
18 1971 Mass. Adv. Sh. 127, 132, 266 N.E.2d 657, 661-662. Decisions in other
juris-dictions are by no means uniform. See id. at 132 n.6., 266 N.E.2d 657, 662 n.6 and cases cited therein.
19 Under Section 6(a)(3), service outside the Commonwealth may be made "by any form of mail addressed to the person to be served and requiring a signed receipt."
setts. In Wilson v. Holiday Inn Curacao N.V.,21 the plaintiff alleged
that he had entered into a contract with the defendant, a Curacao corporation organized and existing under the laws of the Netherlands Antilles, which corporation was a wholly owned subsidiary of Holi-day Inns of America, Inc., a Tennessee corporation doing business in Massachusetts. The plaintiff alleged that the Curacao corporation had breached its contract with the plaintiff and had wrongfully and maliciously instituted legal action against him, thereby causing the plaintiff to lose his "entire business." Service upon the Curacao cor-poration was attempted by delivering in-hand service to the agent in charge of the business of the parent corporation in Springfield, Mas-sachusetts.22 The defendant Curacao corporation moved to dismiss on the ground that the federal court had no personal jurisdiction over the corporation.
Upon the hearing of the motion before Judge (now Chief Judge) Julian, the plaintiff pointed out that the parent corporation had advertised on behalf of its Curacao subsidiary in publications that circulated in Massachusetts, and also had accepted reservations and room deposits in Massachusetts for lodging at the Holiday Inn Curacao. The plaintiff contended that personal jurisdiction could be exercised over the subsidiary under G.L., c. 223, §38,23 on the ground that the
subsidiary was doing business in Massachusetts through its agent, the parent corporation; the plaintiff argued in the alternative that the subsidiary was generally subject to the personal jurisdiction of courts in Massachusetts by virtue of G.L., c. 223A, §3, the Massachusetts "long-arm" statute. 24 The court found against the plaintiff on both arguments.
2I 322 F. Supp. 1052 (D. Mass. 1971).
22 When service has been made in a manner prescribed by state law, the federal court
must look to the state law to determine if the attempted service has been effective. Fed. R. Civ. P. 4(d)(7).
23 Section 38 provides, in relevant part: "In an action against a foreign corporation
. . . which has a usual place of business in the commonwealth, or, with or without such usual place of business, is engaged in or soliciting business in the commonwealth, permanently or temporarily, service may be made in accordance with the provisions of the preceding section relative to service on domestic corporations in general. . . . "
Section 37 of Chapter 223, the "preceding section" referred to in Section 38, provides in relevant part: "In an action against a domestic corporation . . . service shall be made upon the president, treasurer, clerk, . . . cashier, secretary, agent or other officer in charge of its business, or, if no such officer is found within the country, upon any mem-berofthe corporation."
24 Section 3 provides: "A court may exercise personal jurisdiction over a person,
who acts directly or by an agent, as to a cause of action in law or equity arising from the person's
"(a) transacting any business in this commonwealth;
"(b) contracting to supply services or things in this commonwealth; "(c) causing tortious injury by an act or omission in this commonwealth;
"(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persis-tent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth;
§10.1 CIVIL PROCEDURE AND PRACTICE
2ll
In disposing of the plaintiff's Section 38 claim, the court relied heavily on the opinion of the Court of Appeals for the First Circuit in
Caso v. Lafayette Radio Electronics Corp.25 In that action, after an
extensive review of Massachusetts decisions, the court of appeals had concluded:
(a) [D]espite the language of Mass. G.L., c. 223, §38, and despite the court's intimations to the contrary, [the Supreme Judicial Court] has never extended jurisdiction over a corporation whose activities in the state amounted to no more than the constitution-ally permissible "minimum contact" -it has regularly found more than "mere solicitation"; (b) even when it has found solic-itation plus some other activity, it has not extended jurisdiction when the cause of action did not arise out of the activities in Mas-sachusetts. 26
Judge Julian, after noting that he had reviewed more recent Massachu-setts decisions and found nothing to disturb the conclusion reached by the First Circuit Court of Appeals in Caso, held that the
Massachu-setts activities of the parent corporation as an agent for its subsidiary were nothing more than the solicitation of business. Judge Julian also declined to reach through the parent's corporate entity to find juris-diction over its Curacao subsidiary: "This separate entity, though formal, is viable and real."27 Because of the absence of more than
mere solicitation on behalf of the parent corporation and the lack of any activities within the Commonwealth by the subsidiary, Judge Julian held that the court had no personal jurisdiction over the de-fendant under Section 38. He also held that there was no ground for exercising personal jurisdiction over the defendant under the long-arm statute, on the ground that the conduct that was the basis of the plaintiff's claim took place in Curacao.28
While the federal district court's ruling as to Section 38 is fully in
"(f) contracting to insure any .person, property or risk located within this common-wealth at the time of contracting."
For discussion of the long-arm statute, see 1970 Ann. Surv. Mass. Law §28.1; Zabin, The Long-Arm Statute: International Shoe Comes to Massachusetts, 54 Mass. L.Q. 101
(1969); Brown, A Long-Arm Statute for Massachusetts, 12 Boston B.J. 9 (Sept. 1968).
25 370 F.2d 707 (lstCir. 1966).
26 ld. at 711-712.
27 322 F. Supp. 1052, 1054 (D. Mass. 1971). It is interesting to note that later in 1971
the Supreme Judicial Court, in a criminal case, disregarded the corporate form of a subsidiary operating in Massachusetts to subject the parent, which was not formally so operating, to the personal jurisdiction of the Court. Commonwealth v. Beneficial Fi-nance Company, 1971 Mass. Adv. Sh. 1367, 1394-1395, 1451-1459, 275 N.E.2d 33, 56-57, 89-94. In Beneficial Finance, the Court relied in part on the fact that the various cor-porate entities were operating as a unitary, centrally controlled whole. The same obser-vation might possibly be made concerning the Holiday Inn system, but the district court's opinion affords no basis for drawing this conclusion. In Wilson, of course, the acts complained of took place in Curacao, while in Beneficial Finance the alleged criminal acts took place in Massachusetts, a distinction of.Jrajor significance.
28 G.L., c. 223A, §3 (the text of which is set forth in n:z:tsupra), reaches only those
accord with the Massachusetts decisions interpreting that provision, the ruling that no jurisdiction existed under the long-arm statute merits further examination. There are intimations in at least one case that the concept of "transacting any business" as used in Section 3(a) of the long-arm statute is considerably broader than the concept of "doing business" under Section 38 of Chapter 223. In Salter v. Lawn29
the federal District Court for Massachusetts held that where a non-resident guaranteed a note made in Massachusetts by a Massachusetts obligor, the nonresident by virtue of Section 3(a) was subject to service on a cause of action arising out of the guarantee. It is possible to read
Salter as subjecting every guarantor of a Massachusetts obligation to the personal jurisdiction of Massachusetts courts on actions arising from the guarantee. In Wilson the district court pointed out that even if the "transacting any business" standard were conclusive enough to require the subsidiary to defend a"n action arising out of the activities of its parent corporation in Massachusetts, the court would still have no jurisdiction because it was nowhere alleged that the plaintiff's action in any way arose out of, or even was related to, the alleged transaction of business in Massachusetts by the subsidiary. The court stated: "The cause of action in no way resulted from anything defen-dant did or failed to do in Massachusetts."30 Thus, the refusal to
sub-ject the subsidiary to personal jurisdiction would appear to be amply justified.
There is, however, one remaining argument not dealt with in the
Wilson opinion that might afford potential grounds for asserting jurisdiction over the subsidiary in circumstances such as those presented in that case. In passing upon the details of the plaintiff's suit, the dis-trict court noted his allegation of Massachusetts citizenship and his claimed loss of his "entire business" as a result of the defendant's tortious activity. If the impact of the business losses was in fact felt in the Commonwealth, it would seem to have been open to the plain-tiffs to argue that such loss of business rendered the defendant subject to the jurisdiction of the court pursuant to Section 3(d) of the long-arm statute.31 Since it was a par.t of plaintiff's case that the parent had
solicited business on behalf of the subsidiary by advertising in publica-tions circulating in Massachusetts and that the parent corporation had accepted room deposits and reservations on behalf of its subsidiary in Curacao, it would be formalistic indeed to say that the Curacao corporation was not, at least through its agents, itself soliciting business within the Commonwealth. If this point be granted and if the impact of the allegedly tortious injury were felt in Massachusetts, then under a liberal reading of this remedial legislation,32 the defendant would seem to be subject to the jurisdiction of the Massachusetts courts
29 294 F. Supp. 882(0. Mass. 1968). 30 322 F. Supp. 1052, 1055 (D. Mass. 1971 ).
31 G.L., c. 223A, §3(d) permits personal jurisdiction where a defendant who does
business in the Commonwealth has caused an injury in the Commonwealth by an act outside the Commonwealth.
32 See, e.g., Kagan v. United Vacuum Appliance Corp., 1970 Mass. Adv. Sh. 999, 1002,
§10.2
CIVIL PROCEDURE AND PRACTICE213
under Section 3(d). A review of the documents in Wilson reveals that
no attempt was made to demonstrate the business impact of the de-fendant's tortious activity in Massachusetts. Absent compelling evidence on that issue, the decision of the district court in Wilson
seems correct.
§10.2. Massachusetts appellate procedure: A way out of the maze? Once again the intricacies of Massachusetts appellate practice caused the Supreme Judicial Court to devote a substantial amount of time during the 1971 SuRVEY year to resolution of various procedural nice-ties.1 Three full opinions explored the ramifications of present Mas-sachusetts procedures.
In Turner v. Minasiah2 the Court was confronted with a problem
that had no solution under Massachusetts statutes or case law. Turner, a real estate broker, had commenced an action of contract against one Bailey to recover a commission. While that action was pending, Bailey died and his executor, one Lanigan, was substituted as the defendant. After a trial before a jury in 1968, a verdict for the plaintiff was recorded under leave reserved. Within the permitted 28-day period,3 Lanigan
filed a motion to extend the time for filing his bill of exceptions to January 15, 1969. His motion was allowed. Lanigan himself died on January 2, 1969, and his counsel filed a suggestion of death on January 6, 1969. Time for the filing of the bill of exceptions expired before a new administrator could be appointed. On March 20, 1969, Minasian was appointed administrator, and on April 28, 1969, counsel filed an appearance on his behalf and a bill of exceptions. The plaintiff moved to disallow the defendant's bill of exceptions on the ground that it was untimely filed. Judge Moynihan denied the motion and the plain-tiff excepted.
There was no doubt that the defendant had failed to file a bill of exceptions within the time set by the superior court when it allowed the motion for extension. Justice Spalding's opinion for the Supreme Judicial Court stated:
There appears to be no mechanism in our statutes by which the filing deadline [for a bill of exceptions] would be tolled pending the appearance of a legal successor to a decedent. . . .
On the death of Mr. Lanigan there was no legal representative before the Court and counsel's authority was automatically termi-nated by his death . . . . No effective action could have been taken until a legal representative was made a party . . . . 4
The Court nonetheless upheld the propriety of allowing Minasian to
§10.2. 1 For a discussion of the potential agonies involved in practice under the
present Massachusetts bill of exceptions procedure, see 1968 Ann. Surv. Mass. Law §§19.1 to 19.5.
21970Mass.Adv.Sh.l577,265N.E.2d371.
! G.L., c. 231, §113 provides, in relevant part: "The exceptions shall be reduced to
writing in a summary manner and filed with the clerk, and notice thereof shall be given to the adverse party, in civil cases tried by a jury, within twenty days after the [verdict is rendered]."
file a bill of exceptions more than four months after the conclusion of the trial. It was noted that the plaintiff had shown no prejudice on account of the delay and apparently had not contended that Minasian delayed unduly in filing his appearance after his appointment as administrator. In addition, although the Court concluded that G.L., c. 231, §113 "evinces a legislative intent to grant greater latitude to the Court in allowing bills of exceptions which have not been season-ably filed,"5 it was recognized that Section 113 did not apply by its
precise terms since no inadvertence on the part of the defendant could be shown. Articulating the basic policy behind allowance of the de-fendant's bill, the Court declared: "[I]t would be a reproach to the administration of justice if a party, not chargeable with fault or neglect, should lose his right of review because of a fortuitous event beyond his control."6 The Court was thus required, in order to
pre-vent a miscarriage of justice, to fill in the interstices of a restrictive statute even though the precise language of the statute would not support the conclusion reached.
The Turner decision might well cause surprise among Massachu-setts attorneys, since it appears to mark a deviation from the rule of strict construction that the Supreme Judicial Court has traditionally applied to statutes involving appellate review.7 However, the notion
that Turner signals a shift toward liberal construction of appellate review statutes is questionable in view of two subsequent decisions. In
Decker v. Berkshire Gas Co.,8 the plaintiff had commenced a tort act-ion against the defendant and, on June 1, 1967, had secured a jury verdict. Even so, the plaintiff moved for a new trial, and this motion was allowed on September 6, 1967. The defendant excepted, but failed to file a formal bill of exceptions. Over a year later, the action was again tried by a jury and again a verdict was rendered for the plaintiff. Thir-teen days after the verdict in the second trial, the defendant filed a bill of exceptions relating to the allowance of plaintiff's motion for a new trial more than one year before. The plaintiff moved to dismiss the defendant's bill of exceptions on the ground that it was not timely filed and, after a hearing, this motion was allowed, the defendant again excepting.
The Supreme Judicial Court, speaking through Chief Justice
5 Ibid. G.L., c. 231, §113 provides: "The presiding justice may, if in his opinion a bill
of exceptions is filed in good faith, and justice so requires, allow such bill of exceptions although the excepting party or his attorney failed, through inadvertence, to comply with all the provisions of this section. If, through inadvertence, a party who had duly claimed exceptions failed to file a bill of exceptions within said twenty days or within such further time as may have been allowed, the presiding justice may, before final judgment, upon motion after notice and hearing, allow a bill of exceptions to be filed and may allow such bill of exceptions." (Emphasis added.)
61970Mass.Adv.Sh.I577, 1578,265N.E.2d371,373.
7 The Court's tendency toward strict construction is demonstrated in, for example,
New England Trust Co. v. Assessors of Boston, 308 Mass. 543, 33 N.E.2d 268 (1941). As an example of liberal construction, see Gelin v. Hollister, 222 Minn. 339, 24 N.W.2d 496 (1946).
§10.2
CIVIL PROCEDURE AND PRACTICE215
Tauro, overruled the defendant's exception and upheld the allowance of the plaintiff's motion to dismiss the defendant's bill as untimely filed. The Court reasoned that a motion for a new trial, as an inter-locutory matter,9 fell within the procedure outlined in Brooks v. Shaw:
Where exceptions are taken to interlocutory orders, the only course open, conformable to the statute and rule, is for the ag-grieved party to file his bill of exceptions and have it allowed by the justice of whose act he complains. When the case is ripe for final judgment, or is in a condition to be finally disposed of in the Superior Court if the exceptions are overruled, then all bills of exception allowed both as to interlocutory and final matters are to be entered in the full court .10
Although the defendant had duly excepted to the allowance of the plaintiff's motion for new trial, his failure to follow up with a bill of exceptions within 20 days was held to violate the applicable statute.11
He was, therefore, effectively precluded from obtaining review of the action of the trial judge. Such a review might well have resulted in a verdict for the defendant since, even after the second trial, the Supreme Judicial Court admitted that the question of whether the trial judge was correct in refusing to direct a verdict for the defendant was "a close one.''12
The dilemma which confronted the Supreme Judicial Court in
Decker would not arise in most jurisdictions today. For example, California's court rules do away with bills of exceptions, substituting the more liberalized "settlement statement."13 The power to grant
time extensions has been created on the appellate level, 14
consider-ably clarifying the procedural path which an attorney must follow in situations similar to that presented in Decker.
The Supreme Judicial Court's tendency toward strict construction was also demonstrated in Allan Textile, Inc. v. Bates,15 a case that
illustrates another pitfall of Massachusetts appellate practice. Plain-tiff brought an action in contract .against a resident of New Mexico in the Worcester Superior Court. The defendant answered to the merits and the case was referred to an auditor. The original defendant died while the action was pending before the auditor. Plaintiff then ob-tained the issuance of new process, and the defendant's executrix, a resident of New Mexico, was personally served in that state. The executrix appeared specially, filing an answer in abatement that was sustained after a hearing. The plaintiff appealed. It was held that no appeal lies from an answer in abatement when the answer sets forth
9 Anti v. Boston Elevated Ry., 247 Mass. I, 3,141 N.E. 598,600 (1923). 10 197Mass.376,378-379,84N.E.IIO,lll (1908).
11 The applicable statute was G.L., c. 231, §113, the text of which is set forth in n.5
supra.
12 1971 Mass. Adv. Sh. 1219, 1221,271, N.E.2d 642,644. 13 Cal. Sup. Ct. and Dist. Cts. App. Rule 7.
14 I d. Rule I 0.
new facts that were not apparent on the record. Justice Kirk explained: General Laws c. 231, §96, establishes only three instances in which an appeal can be used to review alleged errors of law by the Su-perior Court: where there is (I) an order overruling or sustaining a demurrer asserting that the facts pleaded do not in law support or answer the cause of action; (2) an order for judgment upon a case stated; or (3) an order founded upon matter of law apparent on the record and decisive of the case.16
Plaintiff's only hope would have been to satisfy the third clause of the statute. To do so, the plaintiff would first have had to be appealing from "an order . . . decisive of the case." Although an interlocutory decision that had not terminated the case would not have formed the basis for an appeal,I7 the sustaining of an answer in abatement would seem to provide such a basis. Secondly, the plaintiff would have had to be appealing from an order "founded upon matter of law apparent on the record." Answers in abatement do not measure up to the latter requirement. As the Court said, "It is well-settled as a general rule that there can be no appeal from a decision upon an answer in abatement because this type of pleading requires the setting forth of new facts not appearing on the record and it imports a trial or hearing of those facts upon evidence. "18 The Court noted that in certain instances an
appeal from a pleading is denominated an answer in abatement and is not futile. Such would be the case when the answer in abatement does not set forth any facts not already apparent on the existing record. In such cases the courts are inclined to treat the answer in abatement as a motion to dismiss, and they permit an appeal, since the order of the superior court judge would then be founded upon a matter of law apparent on the face of the record.19 Even this last hope was denied
the plaintiff company in the instant case because its answer in abate-ment alleged facts extrinsic to the record as it stood prior to that plead-ing. The Supreme Judicial Court concluded that the plaintiff's only means of obtaining appellate review in the circumstances of this case lay in a bill of exceptions or a report,2° and that the plaintiff's appeal must be dismissed. Thus, by attempting the wrong approach, the
16 ld. at 1694, 265 N.E.2d at 599. See also Yoffa v. Shaw, 299 Mass. 516, 517, 13 N.E.2d
378, 379 (1938) and cases cited therein.
17 Weil v. Boston ElevatedRy.,216Mass. 545,547, 104 N.E. 343,345 (1914).
18 1970Mass.Adv. Sh.l693, 1694,265 N.E.2d598, 599.
19 Summers v. Boston Safe Deposit and Trust Co., 301 Mass. 167, 168-169, 16 N.E.2d
670, 671-672 (1938); Tobin v. Downey, 310 Mass. 721, 722, 39 N.E.2d 757, 758 (1942).
20 1970 Mass. Adv. Sh. 1693, 1694, 265 N.E.2d 598, 600. The Court's statement that
§10.2
CIVIL PROCEDURE AND PRACTICE217
plaintiff firm was virtually denied any appellate review whatsoever.21
In Turner, Decker, and A lion, the substantive expectations of the
parties were thwarted by the complexity of our procedural forms. One obvious response would be to consider alternative procedural rules such as those suggested in the Massachusetts Proposed Rules of Trial and Appellate Procedure,22 which are discussed in §10.4 infra. The new rules, the final draft of which is currently being prepared, are rooted in the realization that the intricate procedural detail that has long characterized Massachusetts practice has hampered the trial bar and the judiciary, rather than aiding them in the just performance of their functions. Designed to simplify litigation in the Common-wealth, the proposed rules are modeled upon the Federal Rules of Civil Procedure.23 In addition to minimizing the possibility of losing
substantive rights because of procedural imperfection, adoption of these rules will result in an approximate uniformity of practice at both the state and federal bars, and thus greatly facilitate the work of local attorneys. It will also bring Massachusetts into line with the majority of American jurisdictions that have now adopted some modified ver·· sion of the federal rules. 24
Ironically, some of the most important changes that will result from the adoption of the new rules will be in the areas of appellate review and exceptions, the areas with which the three cases discussed above are directly concerned. Perhaps the best way to develop some sense of the impact of the adoption of the proposed rules is through an analy-sis of the above cases as they might have been resolved had the new rules been in effect.
The pitfall noted in the discussion of the A lion case would seem to
be eliminated by the proposed rules since the various methods of seek-ing appellate review, together with their attendant particularized rules, would all be superseded by a unitary appeals procedure. 25 Assuming that the plaintiff had taken a timely notice of appeal follow-ing the decision of the trial court to sustain the defendant's answer in abatement, there would have been no formalistic grounds for avoiding
21 Review might still have been open to the plaintiff company if it had taken a
proper exception to the ruling of the trial judge (see Super. Ct. Rule 72) and had moved for leave to file a bill of exception late on the ground of inadvertence in its choice of methods for seeking appellate review. See G.L., c. 231, §113, and the discussion of Tur-ner v. Minasian, supra.
22 The Massachusetts Proposed Rules of Trial and Appellate Procedure were drafted by reporters James W. Smith and Hiller B. Zobel and a 31-member advisory committee. Once the final draft is approved by the Advisory Committee to the Judicial Conference, which is likely to occur shortly, it will be submitted to the Supreme Judicial Court for official adoption.
23 Moynihan, Preface, in Advisory Comm. on Rules of Civil Procedure of the Mass. Judicial Conference, Mass. Proposed Rules of Trial and Appellate Procedure at v (West, June 1971) (the individual rules are hereinafter cited as Proposed Mass. T. Pro. Rules and Proposed Mass. App. Pro. Rules].
24 Ibid.
appellate review. Nevertheless, there remains some question as to whether the trial court's order should properly be characterized as final or whether it is more nearly intermediate or interlocutory in nature. If the latter is true, even the proposed appellate procedure might not result in allowing an appeal. In New York, where the rules of trial and appellate procedure have been revised along the lines of the Federal Rules of Civil Procedure, certain court orders may not be appealed before a final judgment.26 The New York approach is
consonant with the policy of discouraging appeals in advance of an entry of judgment with respect to questions that may be decided at trial and reviewed upon appeal.27
It is also possible that the Decker case would have been decided
differently under the proposed rules. Under Rule 46, exceptions and bills of exceptions would be eliminated:28
Under Rule 46, which is identical to Federal Rule 46, a party need no longer mouth the magic word "exception" in order to save his right to review a questionable ruling by the trial judge. The party must merely clearly indicate to the court what he wants the court to do or object to the action of the court, stating his grounds therefor. 29
In Decker it is clear that the defendant, by excepting, properly
ob-jected to the grant of the plaintiff's motion for a new trial. What is not clear is whether the defendant ever apprised the trial judge of the grounds for his opposition before he filed mvxmxpll of exceptions over a year later. Since the proposed rule requires the objecting party to make known to the court "his objection to the action of the court and his grounds therefor,"30 it might well be that a party who merely objected
to a motion for a new trial without affording the court any grounds for evaluating his objection could not, over a year later, set forth those grounds and expect the trial judge to pass upon them with an eye toward later appellate review.31
If the proposed rules had been in effect when Turner was decided, a
different result would probably have been required. The proposed appellate rules grant the appellant 30 days from the date of the entry of the judgment or order to file a notice of appeal.32 If, in the Turner
26 N.Y. Civ. Prac. LawandRules§5501 (McKinney 1963).
27 See Finev. Cummins, 260App. Div. 569,24 N.Y.S.2d605 (1940).
28 Proposed Mass. T. Pro. Rule 46 provides: "Formal exceptions to rulings or orders
of the court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, al the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objec-tion does not thereafter prejudice him."
29 Reporters' Notes, Proposed Mass. T. Pro. Rule46.
30 Proposed Mass. T. Pro. Rule46, n.28supra. (Emphasis added.)
" Thus, the basic rationale of the Decker case would probably be applicable even if the proposed rules are enacted.
§10.3
CIVIL PROCEDURE AND PRACTICE 219case, the defendant executor had caused a notice of appeal to be filed prior to his death, delays in pressing the appeal occasioned by the necessity to qualify a successor would not affect the validity of the appeal.33 However, if the defendant executor were to die between the entry of the judgment and the filing of the notice of appeal, his un-timely death would terminate counsel's authority.34 No effective
action could be taken until a legal representative was qualified. If the 30-day filing period for an appeal were to run, it would appear that the luckless administrator would be without remedy, because adoption of the proposed rules would be accompanied by the repeal of G.L., c. 231, §113, and its very liberallanguage.35 With that statute repealed, it is difficult to see how the Supreme Judicial Court could avoid giving effect to the flat proscription contained in the proposed appel-late Rule 14(b): "[N]either the Full Court nor a single justice-may en-large the time for filing a notice of appeal." It would seem that the drafters of the proposed rules, by failing to provide any opportunity for the Court to relax the rigor of this particular requirement,36 are expressing a policy decision that the interest of litigants in the finality of judgments outweighs all other competing situations even though, in a case such as Turner, the practical result might well be "a reproach
to the administration of justice."37
§10.3. Trustee process: Amendment to conform with writ. The subject of trustee process has previously received comment in the SuRVEY.1 Basically, trustee process is one method by which property
of the defendant may be attached to answer for the claims of the plain-tiff. More specifically, trustee process involves a garnishment whereby, at the outset of certain personal actions, a third party may be sum-moned as "trustee" for the benefit of a plaintiff if the trustee is in possession of goods, effects, or credits of the defendant.2 No prior judicial approval is necessary to initiate such a proceeding, except that, in all but a few instances, a bond of the plaintiff must be ap-proved.3 The trustee process procedure is highly technical, and there are many pitfalls inherent in its use if the appropriate statutory
pro-33 Proposed Mass. App. Pro. Rule 3(a) provides, in relevant part: "Failure of an
appel-lant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the Full Court deems appro-priate, which may include dismissal of the appeal."
34 Chandlerv. Dunlop, 3ll Mass. I, 39N.E.2d969(1942).
35 See n.5 supra.
36 Under Proposed Mass. App. Pro. Rule 2, the Supreme Judicial Court is given broad
discretion, "except as otherwise provided in Rule 14(b), (to] suspend the requirements
or provisions of any of these rules in a particular case. "
37 1970Mass. Adv. Sh.l577, 1578,265 N.E.2d371, 373.
§10.3. 11966Ann.Surv.Mass.Law§23.4.
2 G.L., c. 246,§§1, 20.
3 Ibid. No bond is required if the action is "upon a judgment or in contract for
visions4 are not strictly followed. Defects in trustee process are not
waived and may be raised, by writ of error, for the first time on appeal to the Supreme Judicial Court.5 Even a final judgment may be
challenged on the ground of such defects,6 but limits have been set.7
A trustee writ forms the jurisdictional basis of the action; defects in the writ itself cannot be cured by amendment so as to allow an invalid action to continue.8 However, during the 1971 SuRVEY year, in
Ric-ciardi and Sons Construction, Inc. v. Oman Realty Associates Trust,9
the Supreme Judicial Court reaffirmed the proposition that in some circumstances an amendment may save an otherwise defective suit commenced by valid trustee process; the Court expressly repudiated the contrary language of an earlier opinion, Buono v. Nardella.10 The defendant in Ricciardi had filed a motion to dismiss an action on a judgment that had been entered in a case where the original suit had been commenced by trustee process. The trustee writ had alleged that the action was for money due under a written contract. The declaration, on the other hand, had alleged a debt for work and materials according to an annexed account. The defendant's motion to dismiss was based on the plaintiff's failure to file the statutory bond as required under trustee process. The Court noted that a motion to dismiss had been denied in the original action and that there had been no appeal. The Court concluded that "[t]he declaration (despite what was said in
Buono . . . ) could have been amended to make the declaration con-form with the writ, so far as now appears."11
In Buono the writ had stated that the plaintiff's action was in con-tract for goods sold and delivered and for money due under written contract. The Supreme Judicial Court remarked that, in order to com-ply with the statutory bond requirement, each of the five counts in the declaration must fall "within the categories stated in the writ." Chief Justice Wilkins ruled that one of the five counts in the declaration, an allegation that the defendant had prevented the plaintiff's performance of a written contract to deliver goods, was for damages for breach of contract and not for money due under a written contract. This non-conformity with the writ could not, it was held, be cured by waiving the defective count. It should be noted that there was no indication in Buono that the plaintiff had moved to amend during the original proceeding.
The Supreme Judicial Court held in Ricciardi that a motion to
dis-' G.L., c. 246, §§1-83.
5 General Motors Corp. v. McKernan, 350 Mass. 672, 216 N.E.2d 447 (1966), discussed
in 1966 Ann. Surv. Mass. Law §23.4.
6 Ibid.
7 E.g., in a civil case, a writ of error may not be sued out more than six years after
entry of judgment. G.L., c. 250,' §5.
8 Poorvu v. Weisberg, 286 Mass. 526, 190 N.E. 804 (1934); MacCor[Jlac v. Hannan,
248 Mass. 86, 143 N.E. 270 (1924); James, Civil Procedure §11.6 n.32 (1965).
9 1971 Mass. Adv. Sh. 904,269 N.E.2d 702 (rescript).
10 344 Mass. 257,258-259, 182 N.E.2d 142, 143-144 ( 1962).
II 1971 Mass. Adv. Sh. 904, 269 N.E.2d 702, 703, citing Tennessee Plastics, Inc. v.
§10.4 CIVIL PROCEDl!RE AND PRACTICE
221
miss would have been proper in the absence of amendment of the declaration, and that the amendment was within the discretion of the court. The case was remanded in order to allow consideration of the motion to amend. Ricciardi now makes it clear that the statement in
Buono that "each count must fall within the categories stated in the
writ" is inaccurate as applied to cases where the declaration "could have been amended." Counsel should no longer rely on the Buono
language as indicating otherwise. The Court does not seem to have disturbed the implication that a waiver of a count that is not one of the enumerated statutory exceptions to the bond requirement is not possible, even if attempted by express motion to strike and even though the count could clearly be amended to conform to the writ. Nevertheless, the Ricciardi decision reduces the likelihood that cases involving trustee process will be rebuffed upon a matter of form that might be corrected by amendment.
§10.4. Proposed rules of trial and appellate procedure.1 The
need for revision of the present antiquated and inefficient procedural system of the Massachusetts courts has long been recognized by most Massachusetts judges and lawyers. The success of the Federal Rules of Civil Procedure and the adoption of similar rules in more than half of the states have made urgent the need for change. Upon the organi-zation of the Massachusetts Judicial Conference in 1967, a committee on civil procedure was appointed. At its first meeting on June 28, 1967, that committee, under the chairmanship of the late Justice Whitte-more of the Supreme Judicial Court, unanimously agreed on the necessity of modernizing and simplifying the system of civil procedure in the Commonwealth. At its second meeting on November 30, 1967, the committee voted that the principal means of attaining this objec-tive should be adoption of new rules of civil procedure modeled on the Federal Rules of Civil Procedure, and substitution of a unitary system of appellate review for the present system. The committee was of the opinion that the entire project should be carried out under the sponsorship of the judicial conference, through an advisory committee to be appointed by the conference.
In response to the recommendations of the Committee on Civil Procedure, the judicial conference, acting through the late Chief Jus-tice Wilkins of the Supreme Judicial Court, appointed an advisory committee of 31 members to undertake the project of drafting new procedural rules. Judge Cornelius
J.
Moynihan of the superior court was appointed chairman of the advisory committee. Appointed to the advisory committee were lawyers, judges, legislators, and law pro-fessors. The late Chief Justice appointed as reporters for the project Professors James W. Smith and Hiller B. Zobel, both of Boston College Law School. The advisory committee held its first meeting on January 10, 1969; in all, 35 meetings were held. On December 15, 1970, a com-pleted draft was submitted to the civil procedure committee of thejudicial conference. The latter committee authorized the printing and distribution of the proposed rules.
In June 1971 the West Publishing Company, as a service to the legal community, published and distributed to the attorneys of the Com-monwealth a pamphlet containing the proposed rules of trial and appellate procedure. For approximately six months following this distribution, discussions of the rules were made at various bar asso-ciation meetings, and recommendations were made to the reporters by various attorneys and organizations. The Civil Procedure Committee of the Boston Bar Association made a detailed study of the proposed rules and made its recommendations. All of the recommendations were studied by the reporters and two subcommittees of the advisory com-mittee. A new draft of the proposed rules, incorporating many of the recommendations, was adopted by the advisory committee on March 3, 1972. At the time of this writing, copies of these rules are being prepared for submission to the Committee on Civil Procedure of the Massachusetts Judicial Conference. Meanwhile, amendatory legislation, conforming procedural statutes to the proposed rules, has been prepared and filed with the Massachusetts legislature.
Synopsis of proposed trial rules. The Massachusetts trial rules of civil procedure will apply initially in the superior court, the land court, the housing court of the city of Boston, and before any Justice of the Suprerrie Judicial Court. Patterned closely upon the highly successful Federal Rules of Civil Procedure, they simplify litigation and court practice. All procedural distinctions between law and equity disappear, to be replaced by a single form of action, the "civil action."
An action is commenced by filing a complaint (either by mail or by hand) with the clerk of the court. The complaint sets out the plain-tiff's claim, thus combining the functions of the present writ and declaration. Service (effectuated through an officer, who serves a copy of the complaint and a summons upon the defendant) follows gen-erally the familiar pattern. The concept of "return day" has been eliminated. A complaint may be filed and served at any time; the answer must be filed within 20 days of service. The new rules provide for attachment and trustee process.
§10.4
CIVIL PROCEDURE AND PRACTICE223
arising from the transaction or the occurrence that is the subject of the plaintiff's claim. An important exception, however, relieves the defendant from having to counterclaim in cases arising out of a colli-sion or involving personal injury or death.
Parties on the same side of the versus may cross-claim against each
other. In addition, a party against whom a claim has been asserted, wheth,er by the action itself or by a cross-claim therein, may assert his right against a third party. The proposed impleader provisions of the new rules are familiar to Massachusetts practitioners, although no leave of court is required in most cases. Demurrers are eliminated. The proposed rules provide instead for a motion to dismiss on the ground that the pleading does not state a claim upon which relief can be granted.
Since the new discovery rules are a blend of existing Massachusetts discovery practices and the recently revised federal discovery rules, and closely follow the latter, they are similar to the existing Supreme Judicial Court Rule 3:15 and should not cause the Massachusetts practitioner any inconvenience. Thus, in accordance with the new federal rules, the existence and contents of a liability insurance agree-ment are discoverable. On the other hand, the Massachusetts limita-tion of 30 interrogatories will still apply. The new rules severely limit discovery of attorneys' work product, but they do permit discovery of the substance of anticipated expert testimony, upon payment of a fair fee.
The new rules work a major change in the means whereby litigation can be terminated short of trial. Following the federal rules, they allow an expanded application of summary judgment. If upon hearing, with full opportunity to both sides to present affidavits supporting and opposing the motion, a court is convinced that no issue exists as to any material fact, it may allow summary judgment to the party en-titled to judgment. In appropriate instances, the rules specifically permit summary judgment as to liability alone (or as to damages, for that matter), leaving to plenary trial the other contested issues in the case.
Actual trial of cases is greatly simplified. Exceptions are abolished. In order to preserve rights on appeal, one need merely object at any appropriate point in the testimony. Special verdicts by the jury are encouraged; federal practice has indicated the special verdict to be a highly useful device that frequently obviates the need for costly new trials. The new rules greatly simplify motions for a directed verdict and introduce the concept of judgment n.o.v., a more effective version of the familiar Massachusetts practice of entering a verdict "with leave reserved."
In all cases tried by a judge without a jury, the court is required to find the facts specially. Under the new rules, as under the present equity practice, the findings of the trial judge are not to be set aside unless they are "clearly erroneous."
commissioners, and the like. The new term for a quasi-judicial, court-appointed fact finder is master. Other aspects of practice before a
master are entirely familiar.
The concept of judgment under the new rules differs somewhat from present understanding and eliminates the process of "going to judgment." In most cases, judgment is entered immediately upon the determination of the action, unless the court orders otherwise. The concept of "judgment day," so long familiar in Massachusetts prac-tice, disappears.
Synopsis of proposed appellate rules. Simplicity and economy
highlight the new rules of appellate procedure. They apply to any review by the full Supreme Judicial Court of the actions of a lower court, single justice, appellate division, board, commission, or other organ whose decision is the subject of an appeal. In place of the com-plicated distinctions presently existing between bills of exceptions, appeals, claims of reports, and so forth, the new rules substitute a simple notice of appeal. Elimination in the trial rules of the need for exceptions helps to simplify appellate procedure even more. Briefs are still to be printed (under the federal rules they may be xeroxed), and will be in the usual form familiar to Massachusetts practi-tioners. An appendix, usually filed with the appellant's brief, is to contain those portions of the record which either party or both regard as essential to the appellate court's decision.
The time for filing briefs is enlarged somewhat. The appellant must file his brief within 40 days after filing his notice of appeal; the appellee then has 30 days to file his brief. Following this, the appellant may serve a reply brief within 14 days.
