City of Worcester v. Lakeside Mfg. Co.

• Decision Date: 17 October 1899
• Citation: 174 Mass. 299,54 N.E. 833
• Parties: CITY OF WORCESTER v. LAKESIDE MFG. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 299

54 N.E. 833

CITY OF WORCESTER v. LAKESIDE MFG. CO.

Supreme Judicial Court of Massachusetts, Worcester.

October 17, 1899

COUNSEL

H.W. King and C.M. Rice, for appellant.

W.S.B Hopkins, A.P. Rugg, and E.I. Morgan, for appellee.

OPINION

KNOWLTON J.

In this case there is a decree for the plaintiff, an appeal, and a report of facts under St.1883, c. 223, § 7, as amended by St.1893, c. 61. The report in some parts indicates that the exact nature and object of such a report was not carefully considered by the person who drew it. It sets out the decree in full, and concludes with the words: "I report the case on the exceptions, and appeal for the determination of the supreme judicial court." The object of the statute is to secure to parties as a right that which previously had been accorded them as matter of discretion by the justices of this court. See Snow v. Manufacturing Co., 153 Mass 456, 26 N.E. 1116; Wright v. Wright, 13 Allen 207-209; Slack v. Slack, 123 Mass. 443, 444; McFeely v. Scott, 128 Mass. 16-19; Association v. Cory, 129 Mass. 435. After the formal entry of a final decree, as distinguished from the entry of an order for a decree, the record, upon request, is to be perfected, so that all questions of law may be presented on an appeal. Such a report is not a new and additional proceeding in the case after it has reached its ordinary termination in the entry of a final decree, but is in the nature of an extension of the record, in the form of a statement in writing of that which was in the mind of the judge when his decision was made, which, when included in the record, puts the case in proper form for a hearing on the appeal.

The first question presented is whether the defendant corporation, which was the petitioner before the superior court for an assessment of damages for the taking of its property by the city of Worcester, could discontinue its suit while the hearing was going on before commissioners appointed by that court. The respondent city objected to the discontinuance, and insisted that the rights of the parties should be determined in that proceeding. Before the paper declaring the discontinuance was filed, the commissioners had viewed the property taken from the petitioner, and had spent 5 days in hearing evidence upon about 70 similar petitions which with the petition in question, were being heard together. Although that part of the hearing was more directly upon other petitions, it was agreed that so much of the evidence offered by the other petitioners as was applicable to this case should be taken to be applied thereto. Testimony of two witnesses had been taken which was directly applicable to this case. Under what circumstances a plaintiff may become nonsuit as of right in an action at law, or may discontinue in a suit in equity, has been very fully considered by this court in the recent cases of Derick v. Taylor, 171 Mass. 444, 50 N.E. 1038, and Hollingsworth & Vose Co. v. Foxborough Water-Supply Dist., 171 Mass. 450, 50 N.E. 1037. In an action at law he cannot become nonsuit as of right after a trial has begun, and he cannot discontinue in equity after a decree or other proceeding whereby the defendant's situation has been materially changed, so that he has acquired rights which did not exist, or which had not been determined, when the suit was brought, and which render it equitable that these rights should be fully secured by further proceedings in the case. The original petition by the present defendant is a proceeding at law under St.1871, c. 361, § 3, which was made applicable to this last taking by St.1895, c. 384, § 2. The rule in regard to voluntary nonsuits which previously prevailed in actions at common law should be applied to this case. Railroad Co. v. Chase, 125 Mass. 483. Commissioners had been appointed, and the trial for determining the amount of damages had begun. The petitioner could not then subject the respondent to the expense and annoyance of a second suit by filing a discontinuance of the case. Shaw v. Boland, 15 Gray, 571; Sandford v....