Commonwealth v. National Contracting Co.

• Citation: 87 N.E. 590,201 Mass. 248
• Parties: COMMONWEALTH v. NATIONAL CONTRACTING CO. et al.
• Decision Date: 26 February 1909
• Court: United States State Supreme Judicial Court of Massachusetts

201 Mass. 248

87 N.E. 590

COMMONWEALTH v. NATIONAL CONTRACTING CO. et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1909

COUNSEL

Dana Malone, Atty. Gen., and Jas. F. Curtis, Asst. Atty. Gen., for the Commonwealth.

Richard W. Hale, Frank W. Grinnell, and Roger D. Swaim, for defendants.

OPINION

KNOWLTON C.J.

In this case the judge of the superior court allowed the plaintiff's motion to amend the declaration by adding four new counts, and reported to this court the question whether the amendment was rightly allowed.

It is difficult to discover any question of law upon the record. As this is an action at common law, neither party can bring to this court for revision, either by exception or upon a report of the judge, any question which is not strictly a question of law. This court has no jurisdiction in such a case to change a decision of the lower court upon a question of fact. Questions of discretion are, in their essence, questions of fact, and in an action at common law a judge of the superior court or a single justice of this court has no authority under the statute to report to this court a question of fact or a question of discretion. Electric Welding Co., Ltd v. Prince (Mass.) 86 N.E. 947, and cases cited. The rule in equity is different.

It has been decided many times that no exception lies to a decesion upon a question of discretion. On the law side of the court the jurisdiction of a judge to report a case to this court includes only the same kinds of questions that may be brought before us by a bill of exceptions. See Rev. Laws, c. 173, § 105; Id. c. 156, § 7; Churchill v. Palmer, 115 Mass. 310-313.

So far as the allowance of the motion was the exercise of discretion, we have no jurisdiction to consider it. The only question before us is whether it was without authority in law. This is answered both by the statutes and the decisions. Under Rev. Laws, c. 173, § 48, amendments may be allowed in matter of form or substance 'which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought.' It is provided by Rev. Laws c. 173, § 121, that 'the cause of action shall be considered to be the same for which the action was brought if the court finds that it is the cause of action relied on by the plaintiff when the action was commenced, however the same may be misdescribed; and the allowance by the court of an amendment shall be conclusive evidence of the identity of the cause of action.' To such an order as was made in this case no exception lies. Batchelder v. Pierce, 170 Mass. 260, 49 N.E. 310; McLaughlin v. West End St. Ry. Co., 186 Mass. 150, 71 N.E. 317; Golding v. Brennan, 183 Mass. 286-289, 67 N.E. 239.

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