Cheney v. Boston & M.R. Co.

• Decision Date: 28 November 1923
• Citation: 246 Mass. 502,141 N.E. 502
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CHENEY v. BOSTON & M. R. CO.

246 Mass. 502

141 N.E. 502

CHENEY

v.BOSTON & M. R. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 28, 1923.

Error to Supreme Judicial Court, Middlesex County.

Action by Frank P. Cheney against the Boston & Maine Railroad. A verdict was directed for plaintiff, and defendant excepted, which exceptions were sustained (227 Mass. 336, 116 N. E. 411), and subsequently the case was dismissed for want of prosecution, and plaintiff petitioned for writ of error. Judgment affirmed.

William D. Regan, of Lowell, for plaintiff in error.

Trull, Wier & O'Donoghue, of Lowell, for defendant in error.

RUGG, C. J.

[1] This is a writ of error. G. L. c. 250, §§ 1, 2, 3. The defendant in substance pleaded ‘in nullo est erratum.’ Hence the case is here. Perkins v. Bangs, 206 Mass. 408, 92 N. E. 623;Lynn Gas Co. v. Creditors' National Clearing House, 237 Mass. 505, 130 N. E. 111.

The original case was an action of contract in the Superior Court. A verdict was returned for the plaintiff. Exceptions taken at the trial were heard in this court. The decision on exceptions is reported in 227 Mass. 336, 116 N. E. 411. The rescript from this court, filed in the superior court, on the 4th of June, 1917, was: ‘Exceptions sustained.’ The only record of the case thereafter is in these words: ‘And now, on this 6th day of October, A. D. 1919, said action is dismissed under rule 63 of this court.’ That rule provides in substance that, where a case has been pending for two years before the Tuesday after the first Monday of September in each year without action other than placing on the trial list or marking for trial, it shall be dismissed automatically on the first Monday of October following unless on motion supported by affidavit it is allowed by the court to remain longer on the docket. It effects in substance dismissal of cases for want of prosecution.

The dismissal under that rule was final judgment. Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92. Therefore, if any error of law is apparent on the record, it may be corrected in this proceeding.

[3][4] The rescript containing the simple mandate that the exceptions were sustained did not put the record of the case in such condition that the entry of judgment became a clerical matter. The rescript did not contain a further direction respecting the entry of judgment, as was jurisdictionally possible under St. 1909, c. 236 (G. L. c. 231, § 122) and is a course not infrequently pursued in appropriate instances. Bothwell v. Boston Elevated Railway, 215 Mass. 467, 470, 471, 102 N. E. 665, L. R. A. 1917F. 167, Ann. Cas. 1914D, 275.

The order that exceptions are sustained means as matter of practice that there shall be a wholly new trial upon all issues made by the pleadings. Merrick v. Betts, 217 Mass. 502, 105 N. E. 384;Reidy v. Kennedy, 233 Mass. 514, 518, 124 N. E. 289. The plaintiff, if he had insisted upon his right to such new trial, might have had it. Pleadings might have been amended after rescript so as to make new issues, different from those presented at the first trial. West v. Platt, 124 Mass. 353, 355;Pead v. Trull, 173 Mass. 450, 452, 53 N. E. 901;Hooton v. G. F. Redmond & Co., 237 Mass. 508, 513, 130 N. E. 107 and cases there collected.

[5] If, as the plaintiff now contends, the decision of the case when it was here before rested upon a ground no longer tenable under the controlling authority of Great Northern Railway Co. v. Merchants Elevator Co., 259 U. S. 285, 42 Sup. Ct. 477, 66 L. Ed. 943, or under principles there expounded, a point upon which no opinion is expressed, that contention might have been presented at such new trial in the Superior Court. Therefore that point cannot be considered in this proceeding. Raymond v. Butterworth, 139 Mass. 471, 1 N. E. 126.

The case was not ripe for judgment in the superior court under the simple mandate, ‘Exceptions sustained.’ No judgment could have been entered on the record as it then stood. Further action by the court was necessary before the case would be ripe for judgment. The circumstance that upon a new trial, if the evidence should be the same as at the former trial and nothing further appeared, it would be the duty of the superior court judge under the decision rendered when the case was here before to order a verdict for the defendant, did not dispense with the necessity of taking those essential steps prerequisite to putting the record in form for a final judgment. It cannot be assumed as matter of law that they all would have been taken. Manifestly the case did not go to judgment under St. 1912, c. 190 (G. L. c. 235, § 1), and rule 57, Superior Court 1915 Rules. Boston Bar Association v. Casey, 227 Mass. 46, 51, 116 N. E. 541. Neither the clerk of courts nor the court itself rightly could have entered judgment on the rescript alone, in the absence of agreement by parties.

[6][7] The judgment of dismissal was entered in substance and effect on the ground of want of prosecutio...