Home WILLARD C. COUSINS & another vs. OSCAR CROCKER & another.

1 Mass. App. Ct. 837

July 31, 1973

In this petition for registration of title under G. L. c. 185, the sole dispute concerned the location of the southerly boundary of the locus. Deeds in evidence established that the southerly boundary of the locus is the northerly boundary of the respondents' land but did not fix the location of the common boundary. There were findings to the effect that for a period in excess of twenty years a fence had existed which was acquiesced in by the petitioners' and respondents' respective predecessors in title as the true boundary line. Much conflicting testimony was offered as to the location of that fence. The judge accepted the evidence of location offered by the the petitioners and decreed registration accordingly. The respondents submitted no requests for rulings but excepted to certain findings and to the decision. The exception to the general finding does not raise the question whether the finding is warranted on the evidence. DiCicco v. Graphic Mach. Corp. 329 Mass. 695 , 696 (1953). Murphy v. Crosby, ante 402 (1973). If the decision is treated as one stating all material subsidiary facts, Leshefsky v. American Employers' Ins. Co. 293 Mass. 164 , 166-167 (1936), the general finding was clearly permissible on those subsidiary facts. Van Allen v. Sweet, 239 Mass. 571 , 574-575 (1921). Wood v. Quintin, 328 Mass. 118 , 119 (1951). Boutin v. Perreault, 343 Mass. 329 , 332 (1961). The exceptions to subsidiary findings similarly presented no issue as to whether they were warranted on the evidence. Matter of Loeb, 315 Mass. 191 , 194 (1943). The respondents could not have succeeded if they had submitted proper requests for rulings. There was no error.

Exceptions overruled.

Home AMERICAN MUTUAL LIABILITY INSURANCE COMPANY vs. OLD COLONY TRANSPORTATION COMPANY, INC.

1 Mass. App. Ct. 837

July 31, 1973

The defendant's substitute outline bill of exceptions was filed May 22, 1972. The clerk, on August 23, 1972, sent notice in accordance with Rule 74 of the Superior Court (1954) that "unless within thirty days hereafter . . . an affidavit is filed with the clerk that the bill of exceptions has been presented by a party to the proper justice for allowance, the bill of exceptions will be dismissed and judgment . . . will be entered as though no exceptions had been filed." On Friday, September 22, 1972, the clerk, acting as directed by the same rule, dismissed the bill of exceptions. Being ripe for judgment, the case went to judgment at 10:00 A.M. on Monday, September 25, 1972, by operation of Rule 79 of the Superior Court (1954). The trial judge was thereafter without power to allow the defendant's motion, filed September 26, 1972, to file the affidavit of presentment, to set aside the dismissal of the bill of exceptions, and to vacate judgment. Higgins v. First Natl. Stores, Inc. 340 Mass. 618

Page 838

(1960). Let an entry be made that the case went to judgment on September 25, 1972.

So ordered.