Bacon v. George

• Decision Date: 25 February 1914
• Parties: BACON v. GEORGE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 519

104 N.E. 382

BACON v. GEORGE.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1914

COUNSEL

W. C. Cogswell, of Boston, for appellant.

M Sumner Holbrook, of Boston, for appellee.

OPINION

RUGG C.J.

This case was before us in 206 Mass. 566, 92 N.E. 721. It there was decided that although technically the plaintiff as trustee in bankruptcy could not recover as the nominal party plaintiff, yet an opportunity ought to be given him to apply for an amendment, to enable him to prosecute the action as the only party beneficially interested and in the name of the original plaintiff. It further was said that if such an 'amendment should be allowed then such proceedings thereafter shall be had either by way of a judgment upon the verdict, or of a new trial or otherwise, as to that court [the superior] shall seem just and proper.' That decision was right. No argument has been addressed to us which leads us to doubt its soundness. It became the law of the case. Boyd v. Taylor, 207 Mass. 335, 93 N.E. 589. Motion for an amendment as indicated in the earlier opinion was allowed in the superior court. Plainly there was no error in this regard. It conformed to the rescript and the opinion. Whether it did or not is the only question now open in this respect. Attorney General v. N. Y., N.H. & H. R. R., 201 Mass. 371, 87 N.E. 621.

No order then was made whether there should be a new trial or not. None can be inferred where the record is blank touching the subject. Thereafter motion was made by the plaintiff that judgment be entered on the verdict. This motion was granted. Whether is should have been granted or not rested in the sound judicial discretion of the court. Opposition to it on the part of the defendant was the equivalent of a motion for a new trial, which itself is a matter of sound discretion. Freeman v. Boston, 178 Mass. 403, 59 N.E. 1018.

The defendant filed an affidavit setting out certain reasons why a new trial should be had. This is no part of the record and cannot be considered on appeal. Storer v. White, 7 Mass. 448. Warner v. Collins, 135 Mass. 26. The question presented to the superior court on the motion was in substance and effect whether justice required that the defendant should have another opportunity to try the facts or whether that issue had been determined fairly, or whether there was in truth any fact to be tried, or whether for any reason there should be a new...