Opinion
January 23, 1911.
March 3, 1911.
Present: KNOWLTON, C.J., MORTON, LORING, BRALEY, RUGG, JJ.
In a suit in equity, where the case has been referred to a master under an order in the usual form and the master has filed a report in which he finds that the allegations of the bill relied upon by the plaintiff as the ground for relief are not true and does not report the evidence, and no exceptions are taken to the master's report, the only action possible for the judge who hears the case is to make a decree that the bill be dismissed.
F.A. Torrey E.W. Woodside, for the plaintiff.
A.C. Berman, for the defendants.
This is a suit in equity by which the plaintiff seeks to set aside the foreclosure of a mortgage on real estate, of which he owned the equity, on the ground that the foreclosure sale was not held as advertised. The case was referred to a master under an order in the usual form. No exceptions were taken to the master's report. The master found as a fact that the foreclosure sale was held as advertised and stated that this was the only issue tried before him. As the evidence is not reported, there is nothing upon which to base a criticism of this finding. It stands as final. A decree has been entered dismissing the bill, from which the plaintiff appealed. The only matter open for argument is that the decree could not have been entered lawfully upon the facts found. It is too plain for discussion that the only action possible, upon a finding that the allegations upon which the plaintiff relied were not true, was to dismiss the bill.
Made in the Superior Court by Richardson, J.
Decree affirmed with costs.
The case was submitted on briefs.