Graustein v. H. P. Hood & Sons

RUGG, Chief Justice. This action was tried by a Judge of the Superior Court without a jury. He filed findings and rulings on February 29, 1932. The findings were for the plaintiff on counts 2, 3, 4 and 5 of his declaration, for the defendant on counts 1 and 6, and for the defendant in its declaration in set-off. The defendant filed a bill of exceptions on March 19, 1932. The plaintiff filed a bill of exceptions on March 21, 1932. No action having been taken on the bill of exceptions of the defendant for three months after filing, notice was sent to the defendant, to the plaintiff and to the trial Judge by the clerk of the court on June 21, 1932, that the time to act on that bill of exceptions would expire on July 22, 1932. Beginning on June 23, 1932, various motions of the defendant for extension of time for the allowance of its bill of exceptions were presented and were allowed by the court, each motion being allowed before the expiration of the time allowed by the next preceding extension. On the same dates motions to extend the time for allowance of the plaintiffs bill of exceptions were presented and allowed. On April 18, 1933, the defendants motion to extend the time for allowance of its exceptions to and including May 10, 1933, was allowed, and on April 20, 1933, the court directed the clerk to note on that motion that the time was extended for filing the defendants affidavit of presentment for allowance of its bill of exceptions under Rule 74 of the Superior Court (1932). The plaintiff excepted to the orders of the court on the defendants motion of April 18, 1933. The plaintiff filed a motion on June 3, 1933, to dismiss the defendants bill of exceptions on the grounds that the defendant had failed to prosecute its bill of exceptions as required by said Rule 74, that the court had no power to grant any extensions or to allow or disallow the defendants bill of exceptions, and that the court had no jurisdiction to act further upon that bill. This motion was denied subject to the exception of the plaintiff. On June 15, 1933, the defendant filed its affidavit of presentment under said Rule 74. The plaintiffs bill of exceptions covering these exceptions was allowed and is before us.