Cowley v. Train

• Decision Date: 18 March 1878
• Citation: 124 Mass. 226
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles Cowley v. Charles R. Train & others

124 Mass. 226

Charles Cowley v. Charles R. Train & others

Supreme Court of Massachusetts

March 18, 1878

Suffolk.

Appeal dismissed.

J. O Teele, W. S. Slocum & J. W. Pickering, for the several defendants.

C Cowley, pro se.

Gray C J. Colt & Soule, JJ., absent.

OPINION

Gray C. J.

The question presented by the defendants' motions to dismiss is whether the full court has jurisdiction of an appeal by the plaintiff from the judgment of a justice of this court, sustaining a demurrer to the declaration in an action of tort.

By the Gen. Sts. c. 129, § 64, every demurrer in an action at law, either in the Superior Court or in this court, may be heard in the first instance by a single justice, and his decision as to the misjoinder of counts is final; "but if the cause of demurrer is that the facts do not in point of law support or answer the action, and the party against whom the decision is made does not pray for leave to amend, such decision shall not be final, but the demurrer may be further heard upon appeal or otherwise, as is provided in respect to such questions of law."That statute, as observed by Mr. Justice Wells in Commonwealth v. Gloucester, 110 Mass. 491, 497, does not provide how such questions shall be carried up, but assumes that point to be regulated by other statutes, to which therefore it becomes necessary to refer.

An appeal lies from a judgment in the Superior Court upon a demurrer, as from any other judgment of that court, founded upon matter of law apparent on the record, except judgments upon pleas in abatement or motions to dismiss for defect of form of process.Gen. Sts. c. 114, § 10.Any opinion, ruling, direction or judgment of a judge of either court in matter of law (except upon a plea in abatement, or a motion to dismiss for defect of form in process) may be revised by bill of exceptions. c. 115, § 7.Questions of law, arising before a single justice of this court, may be reserved and reported by him for the consideration of the full court. c. 112, § 10.In this court, "questions of law on exceptions, on appeals from the Superior Court, on cases stated by the parties, and on special verdicts, and all issues in law,"(except where, as in the case of demurrers, special provision is made to the contrary,) are within the exclusive jurisdiction of the full court. c. 112, § 5.Massachusetts National Bank v. Bullock, 120 Mass. 86.This section, by specifying appeals from the Superior Court, and saying nothing of appeals from a justice of this court, clearly implies that there can be no appeal in an action at common law from a justice of this court to the full court.And no statute of the Commonwealth has ever authorized such appeals.

The necessary conclusion is, that under the provision of the Gen Sts. c. 129, § 64, that "the demurrer may be further heard upon appeal or otherwise, as is provided in respect...