Barry v. Alton Rubber Co.

• Decision Date: 07 January 1931
• Citation: 274 Mass. 18,174 N.E. 264
• Parties: BARRY et al. v. ALTON RUBBER CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 18

174 N.E. 264

BARRY et al.

v.ALTON RUBBER CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 7, 1931.

Report from Municipal Court of Boston; John Duff, Judge.

Action by Catherine M. Barry and others against the Alton Rubber Company.After a decision for plaintiffs, defendant's motion for a new trial was denied, and the court later refused to entertain a second motion for a new trial, and reported the ruling to the appellate division, which dismissed the report.Case reported to Supreme Court.

Order dismissing report affirmed.

Hannigan & Hannigan and Anthony M. McDonough, all of Boston, for plaintiff.

Joseph Riceman, of Boston, for defendant.

RUGG, C. J.

No requests for rulings were presented at the hearing on the merits of this action of contract.It was decided in favor of the plaintiff on April 3, 1929.The defendant seasonably filed a motion for a new trial, which was heard and denied on September 18, 1929.On the following day a second motion for a new trial was filed, the only ground alleged being ‘to prevent a possible failure of justice.’The judge heard both parties de bene on this second motion and received de bene numerous requests for rulings, which he thereafter declined to entertain or act upon.He later declined to entertain the second motion for new trial and at the request of the defendant reported the correctness of this ruling to the appellate division.

The hearing de bene of the second motion was not the exercise of judicial discretion in favor of entertaining the motion.The entire subject was left open for such final judicial action as seemed wise.Clarke v. Fall River, 219 Mass. 580, 586, 107 N. E. 419.

It is apparent from the frame of the second motion and the tenor of the requests for rulings that the attempt of the defendant was to present anew on this second motion questions which as matter of right could be presented only at the trial on the merits.That cannot be done as of right.Energy Electric Co., petitioner, 262 Mass. 534, 538, 160 N. E. 278, and cases cited.

The defendant had presented one motion for a new trial, which had been fully heard and decided.The second motion discloses nothing requiring judicial action.If it be assumed that under appropriate conditions a second motion of this nature may be considered by the court, there is nothing on this record to indicate error in the refusal to entertain it in the case at bar.Commonwealth v. Ruisseau, 140 Mass. 363, 365, 5 N. E....