Rule 46.Exceptions Unnecessary

(1996)

Rule 46 has been applicable in the District Court since the adoption of the District/Municipal Courts Rules for Appellate Division Appeal in 1994. Note that under the terms of this rule, no objection is necessary in the District Court to preserve for appeal rulings made by the court in response to written requests for rulings. See Rule 64A of these rules.

(1973)

Under Rule 46, which is identical to Federal Rule 46, a party need no longer mouth the magic word "exception" 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.

Although Rule 46 presumes the requirement of objection, it does eliminate exceptions and bills of exceptions. This severely changes Massachusetts practice, where an objection was considered a mere preliminary gesture indicating to the judge that alleged error was about to occur. Thus the opposing party was warned of the possibility of error so that he might correct the defect, if he could and would, and the trial judge was given an opportunity to exercise his judgment on the contention. An objection in Massachusetts formerly preserved no rights. That could be done only by claiming an exception following an adverse ruling on an objection. Consequently, an exception, properly taken and preserved, was necessary and sufficient to obtain appellate review of a question; an objection, although a necessary basis of an exception, Mouradian v. Giblin, 254 Mass. 478, 479, 150 N.E. 215 (1926), did not suffice to obtain review, Leyland v. Pingree, 134 Mass. 367, 370 (1883).

Under Rule 46, these purposes are served entirely by an objection. The same specificity formerly required in taking an exception, Graunstein v. Boston & Me. R.R., 317 Mass. 164, 167, 57 N.E.2d 570, 572 (1944) would under Rule 46 be required in making an objection. See Maulding v. Louisville & Nashville R. Co., 168 F.2d 880 (7th Cir.1948). General objections are regarded with the same disfavor as general exceptions used to be and will be found adequate only if the grounds cannot possibly be misunderstood. See Johnston v. Reily, 160 F.2d 249 (D.C.1947). Without a specific objection and a ruling on it, the appellate court under Rule 46 will generally not review the question, any more than it would review an overruled objection to which under prior practice a specific exception was not taken. In the federal system, if the trial court has committed "fundamental error" (sometimes called "plain error"), the Court of Appeals may review the point, even though no objection was raised below. See Sibbach v. Wilson, 312 U.S. 1, 16, 61 S.Ct. 422, 427, 85 L.Ed. 479 (1941). Massachusetts does not follow the "fundamental error" doctrine. The Reporters know no case in which the Supreme Judicial Court has allowed late-claimed error to affect the outcome. The closest the Court has come to considering such error was Newell v. West, 149 Mass. 520, 531-532, 21 N.E. 954, 958-959 (1889), where a "purely clerical" error in an account was corrected on appeal, even though not questioned below.