Carangias v. Mkt. Men's Relief Ass'n, Inc.

• Citation: 199 N.E. 924,293 Mass. 284
• Parties: CARANGIAS v. MARKET MEN'S RELIEF ASS'N, Inc.
• Decision Date: 29 January 1936
• Court: United States State Supreme Judicial Court of Massachusetts

293 Mass. 284

199 N.E. 924

CARANGIAS

v.MARKET MEN'S RELIEF ASS'N, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 29, 1936.

Report from Superior Court, Suffolk County; F. T. Hammond, Judge.

Action on contract by Mary P. Carangias against the Market Men's Relief Association, Incorporated, in which a verdict was directed for defendant. On report.

Judgment for defendant on nonsuit of the plaintiff.

D. A. Foley and J. J. Sullivan, both of Boston, for defendant.

RUGG, Chief Justice.

This is an action of contract by the plaintiff to recover on a certificate of membership issued to her husband in the defendant. The plaintiff was named as beneficiary in the certificate. The husband died on January 12, 1931. At the close of the evidence the defendant filed a motion for a directed verdict. The motion was allowed and a verdict directed for the defendant upon the agreement of counsel that the case be reported to the full court, and that, if the order directing the verdict was right, judgment should be entered for the defendant; if the order directing the verdict was wrong, judgment should be entered for the plaintiff for a specified sum.

When the case was reached for argument at the bar of this court on December 5, 1935, it appeared that the plaintiff had filed no brief, and in response to notices from the clerk of the court no communication had been received by him. The plaintiff was thereupon called and nonsuited. She was not in court. No attorney represented her. It is required by Rule 2 of Rules Regulating Practice before the Full Court (1926) that each party to a case for argument shall prepare and file a brief.

Question has arisen in our minds as to the proper procedure in these circumstances. It is the general rule, both at law and in equity, that this court does not consider questions of law which are not argued by a party. Forbes v. Thorpe, 209 Mass. 570, 578, 95 N.E. 955;Commonwealth v. Dyer, 243 Mass. 472, 508, 138 N.E. 296;Mullen v. Board of Sewer Commissioners of Milton, 280 Mass. 531, 537, 182 N.E. 641. Commonly, when a party is called and either nonsuited or defaulted, the decision below is affirmed by rescript without opinion. The case at bar came before us, not on exceptions or by appeal but on report. In First National Bank of Grafton v. Babbidge, 160 Miss. 563, at page 565, 36 N.E. 462, 463, it was said: ‘This case comes up on a report, and, although the defendants do not appear to argue the question presented, we have considered it.’ The question there presented was novel and somewhat difficult. Whatever may have been the grounds for considering the question, it cannot be thought that the...