
    JACOB HURWITZ vs. SAMUEL T. LAKSON
    Suffolk, ss. Municipal Court of the City of Boston
    Argued December 1, 1941
    Opinion filed April 7, 1942.
    
      J. W. Vcmgham, for the Plaintiff.
    
      8. T. Lakson, for the Defendant.
   Carr, J.

The plaintiff is before us on an appeal involving $21.80. The action is in contract, and there was a finding for the plaintiff. On appeal to the Appellate Division the finding was set aside and a new trial ordered. The plaintiff thereupon discontinued and the clerk assesssed costs to the defendant. These included witness fees for the defendant which are the subject of this controversy. The plaintiff appealed from the clerk’s assessment to a judge. A hearing was had and requests for rulings were filed by the plaintiff. The judge denied the requests and affirmed the clerk’s assessment. The appeal is before us on the denial of the requests.

We hold that the plaintiff has waived his appeal by failing to file a brief. Soscia v. Soscia, 1941 A. S. 1879.

In the page and a half of typewriting filed by the plaintiff entitled brief, the plaintiff states the case, states his contentions and submits that the judge was wrong. He does not cite a single authority. If counsel could not find decisions exactly in point, at least he could find some dealing sufficiently with the subject to suggest its solution.

Some days after the hearing, in a letter sent to the Court, the plaintiff cited a case which already appeared in the defendant’s brief. The case had no present value. It was decided under the General Laws of 1860. The law as to the point there decided was changed by the Acts of 1895, Ch. 234, sec. 1 (see Gen. Laws (Ter. Ed.) Ch. 250 sec. 14). Moreover, the question raised was not open under the report.

Counsel for the defendant has discovered and briefed numerous cases relating to the award of costs. Though apparently no case has been found exactly in point, it seems from those he has cited, considered in connection with ¡Gen. Laws, (Ter. Ed.) Ch. 261, see. 1, that the prevailing party shall have his costs; that the prevailing party as to costs is the one who is entitled to judgment; and that the judgment need not be upon the merits of the case. To use a metaphor applying to the situation in this case: it makes no difference whether a party wins by his own attack or by the voluntary surrender of the enemy.

At the time set for hearing of the appeal an attorney, not on the brief and not counsel of record, appeared and sought to make an oral argument. The Division tried to make clear to him that it wished to consider whether the appeal was waived. He was told that it doubted if the document filed by the plaintiff was a brief and that the right to argue was doubtful. He was told that he would be heard as a matter of courtesy. His oral argument, however, added nothing to the written document.

It is often said in decisions that as the appealing party filed no brief and made no oral argument, the appeal was waived. Olson v. Carpenter, 296 Mass. 120. This implies, we assume, that an appellant may get by with only an oral argument. No case has been called to our attention laying down what constitutes an oral argument. Surely (especially when there is no brief) a mere statement of the case, that the appellant relies on the questions he had saved, and that the judge was wrong, would not be considered an oral argument any more than it would be an argument in a printed brief. Kay v. Audet, 306 Mass. 337, 338.

That the argument must be something of value is made very clear by the articles on Oral Arguments by Chief Justice Field and Robert C. Dodge, Esq., cited below. On the subject of written and oral arguments, see “From Writ to Rescript”, said articles by the Chief Justice and by Mr. Dodge, and articles by Judge Qua and Mr. Hitchcock.

The comparative value of argument by brief and oral argument depends somewhat on the custom of the Court. Where a court looks neither at the record nor the briefs before the hearing, it is obvious that oral argument, whether or not a brief is filed, is of vital importance. From it the Court gets its first information as to the facts and issues to enable it to make its tentative decisions. Of course a good oral argument gives life to the printed page. For such importance as it has, such argument may bring out with striking force the important issues.

It has always been the practice of the members of the Appellate Division of this court to read the record and, where necessary, the briefs, to be in a position to understand and question oral arguments on the issues involved. There is good authority for this practice. In the United States Supreme Court “all cases which are orally argued before this Court, with one minor exception, are considered by the Court in private conference prior to oral argument”. Where certiorari is granted or jurisdiction on appeal noted briefs are studied privately by the Court prior to oral arguments. (See letter at end of this opinion.) It is now the practice in this Court to confer after hearing. At such conferences tentative dispositions may be suggested though on further study of the case cm entirely different result may he reached. The Court has a small library. Opinions often have to be worked on after a day of trial or at odd moments when the judge is on call in chambers for miscellaneous services. At such times the Court House library is practically inaccessible. Whether the oral argument had any value or not what the Appellate Division wants is a good brief giving help on the law. It is astounding how often it is disappointed.

What then is a brief! Clearly it is not a document which merely states that the party relies on all questions on which appeal has been taken and that the judge was wrong. Commonwealth v. Dyer, 243 Mass. 472, 508.

Eule 2 of the Supreme Judicial Court provides that each party shall file a brief “of the points on which he intends to rely, and the authorities intended to be cited in support of them, arranged under the respective points. Each brief shall begin with a concise statement of the case, sufficient to show in a general way the questions involved.”

Buie 31 of this court after referring to the mechanical requirements for a brief, contains the following provision: “Briefs shall be signed by counsel, or by the party, and shall contain the points and authorities upon which the party relies, and his argument upon them”.

Both rules contemplate aid to the Court by the citing of authorities. The source and extent of such citations are discussed by both Judge Qua and Mr. Hitchcock in “From Writ to Rescript” see especially pp. 276, 277 and pp. 285 to 286.

As it was said by Judge Lummus in Boston v. Dolan, 298 Mass. 346, 355, — “The defendant saved a number of questions of evidence, but he has not argued them beyond asserting in his brief as to each that the judge erred. This is not argument. Rule 2 of the Rules for the Regulation of Practice before the Full Court (1926) (252 Mass. 585) requires a brief * * * signed by counsel, of the points on which he intends to rely, and the authorities intended to be cited in support of them, arranged under the respective points’. The rule contemplates not only a list of the problems presented to the court but also some aid in solving them”. (The italics are ours.)

If an appeal is of sufficient importance to require the court to search the law for an answer, it is of sufficient importance to require the appealing party to search the law to help the court. Kay v. Audet, 306 Mass. 337, 338, supra.

The appeal having been waived the Beport is Dismissed.

OFFICE OF THE CLERK

SUPREME COURT OF THE UNITED STATES WASHINGTON, D. C.

January 23,1942

Honorable Charles L. Carr

Boston, Massachusetts

My dear Justice Carr:

Replying to your letter of January 20th you are advised that all cases which are orally argued before this Court, with one minor exception, are considered by the Court in private conference prior to oral argument.

In the case of a petition for certiorari the Court has before it the petition for writ of certiorari, the brief in opposition and the record.

In cases coming before the Court upon appeal the Court has before it the printed jurisdictional papers and the original certified record. Should they grant the petition for certiorari or note jurisdiction over the appeal the case is then ready for argument on the merits and briefs on the merits are filed before the date of argument. Such briefs are distributed immediately to the members of the Court and are studied privately prior to the oral argument of the case.

Yours truly,

CHARLES ELMORE CROPLEY,

Clerk.

By (s) E. P. Cullinan

Assistant  