Donovan v. Donovan

• Decision Date: 01 April 1936
• Citation: 200 N.E. 884,294 Mass. 94
• Parties: DONOVAN v. DONOVAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

294 Mass. 94

200 N.E. 884

DONOVAN

v.DONOVAN.

Supreme Judicial Court of Massachusetts, Suffolk.

April 1, 1936.

Report from Superior Court, Suffolk County; O'Connell, Judge.

Action of contract by Joseph Donovan against Elizabeth R. Donovan. Verdict for plaintiff in the sum of $3,401.11, and case transferred on the report of the trial judge and stipulation of the parties.

Judgment for plaintiff.C. D. Driscoll and J. F. Meagher, both of Boston, for plaintiff.

D. E. Irwin, of Boston, for defendant.

RUGG, Chief Justice.

A verdict was returned in favor of the defendant in this action of contract on June 7, 1934. On the following day the plaintiff filed a motion to set aside the verdict. He neglected to send a true copy thereof to the defendant or to the attorney for the defendant as required by Rule 54 of the Superior Court (1932), but instead mailed an unsigned copy to the attorney for the defendant. That was not a compliance with the rule. Petition of Thorndike, 244 Mass. 429, 139 N.E. 208. Because of this failure to comply with the rule the defendant filed a motion to dismiss the motion for a new trial. A hearing on those motions was had on June 23, 1934, but no decision was rendered. At this hearing the plaintiff relied solely on the ground that the verdict was against the evidence and the weight of the evidence. On June 25, 1934, the plaintiff filed a motion to extend the time for filing motion for new trial and for giving notice of such motion. On September 7, 1934, the trial judge allowed that motion, and extended the time for filing such motion for new trial and for giving notice thereof until September 15, 1934. The defendant excepted to the allowance of that motion. The defendant also filed a motion to dismiss the motion of the plaintiff to extend the time for filing motion for a new trial. Both motions of the defendant were denied subject to her exception. The plaintiff on September 7, 1934, filed a motion for a new trial and mailed copy as required by the rule. This motion was in substance the same as the one filed on June 8, 1934. Before the plaintiff's motion for a new trial was passed upon, the defendant filed a bill of exceptions covering the denial of her two motions and the granting of the plaintiff's motion to extend the time for filing a motion for new trial. That bill of exceptions was allowed.

The motions for new trial were argued and on December 15, 1934, a new trial was granted for the first ground set forth in the motion of September 7, 1934. That ground was that the verdict was against the evidence. The defendant excepted to the allowance of this motion. A second bill of exceptions was allowed covering that point.

The case then came on to be heard before another judge. The defendant objected to proceeding to trial on the ground that her exceptions then pending touching the earlier stages of the case rendered the case not ripe for trial. This objection was overruled. At the close of the evidence motion was made that a verdict be directed for the defendant on the same ground. This motion was denied. A verdict was returned in favor of the plaintiff. The judge presiding at the second trial reported the questions of law involved in his rulings. The parties desired all questions raised by the two bills of exceptions and by the report determined at the same time. To that end copies of all papers to which reference has been made are included in the present record and the parties have stipulated as to the final disposition of the case dependent upon the decision of the questions of law.

There was no error in the rulings made at the second trial. The two bills of exceptions relate to the setting aside of the verdict. Those exceptions although properly allowed could not be entered and heard by this court until the case had become otherwise ripe for final judgment, because the trial judge did not report the questions of law presented by them. Filing and allowance of these exceptions did not prevent or delay the progress of the case in the Superior Court. Brooks v. Shaw, 197 Mass. 376, 84 N.E. 110;Weil v. Boston Elevated R. Co., 216 Mass. 545, 104 N.E. 343;Barnett v. Loud, 243 Mass. 510, 137 N.E. 740;Cosmopolitan Trust Co. v. Cohen, 244 Mass. 128, 138 N.E. 711.

The judge presiding at the first trial had power to extend the time for the giving of notice of the first motion for a new trial. The plaintiff did not ask for that but sought extension of time for filing a new motion and giving notice thereof. The trial judge was authorized to grant that motion. The limitation of time to three days after verdict is subject to such extension. The trial judge was acting strictly within his jurisdiction in considering and granting the second motion for a new trial. Rules 2, 3, 54 of the Superior Court (1932). Whitney v. Hunt-Spiller Mfg. Corporation, 218 Mass. 318, 105 N.E. 1054;Boston Morris Plan Co. v. Barrett, 272 Mass. 487, 490, 172 N.E. 603;Friend Lumber Co., Inc., v. Armstrong Building Finish Co., 276 Mass. 361, 369, 177 N.E. 794, 80 A.L.R. 599. The plaintiff had all rights under the second motion which he would have had if it had been filed within three days after verdict and proper notice had been seasonably given. The pendency of the earlier motion in the circumstances was no bar to the second motion.

A motion to set aside a verdict because against the evidence is quite different in substance from a motion for a directed verdict because of no evidence; failure to ask for a directed verdict is no bar to a motion for a new trial....