Driscoll v. Battista

• Decision Date: 02 April 1942
• Parties: THOMAS DRISCOLL v. JOSEPH G. BATTISTA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

311 Mass. 372

41 N.E.2d 16

THOMAS DRISCOLL v. JOSEPH G. BATTISTA.

Supreme Judicial Court of Massachusetts, Middlesex.

April 2, 1942

January 7, 1942.

Present: FIELD, C.

J., DONAHUE, QUA & DOLAN, JJ.

Practice, Civil Exceptions: entry in Supreme Judicial Court; Informal trial Speedy trial.

Entry in this court of a bill, setting forth an exception to a denial of a motion that an action be advanced for speedy trial pursuant to Section

60A of G. L. (Ter Ed.) c. 231 following an acceptance of an offer to waive the rules of evidence, was under Section 96 premature where the case had not been tried; and the exceptions were dismissed.

TORT. Writ in the Third District Court of Eastern Middlesex dated January 28, 1941.

After removal to the Superior Court, the motion for speedy trial described in the opinion was denied by Donahue, J.

I. M. Davis, for the plaintiff. No argument nor brief for the defendant.

QUA, J. This is an action at law for personal injuries. After issue joined in the Superior Court the plaintiff, by a writing filed in the clerk's office in accordance with G. L. (Ter. Ed.) c 231, Section 60A, offered to waive the rules of evidence. The offer was not rejected and in accordance with the provisions of the section "shall be deemed to have been accepted." The statute further provides that in these circumstances "such action or suit shall be advanced for speedy trial"; but the plaintiff's motion to advance was denied. The record states that the "defendant" excepted. We assume, however, that the word "defendant" is a clerical error for "plaintiff," since the bill of exceptions purports to be that of the plaintiff founded upon the denial of the plaintiff's motion.

This bill of exceptions is not properly before us. General Laws (Ter. Ed.) c. 231, Section 96, relating to actions at law, contains a provision that "no appeal or exception shall be entered in the supreme judicial court until the case is in all other respects ripe for final disposition by the superior court." Plainly the case is not ripe for final disposition by the Superior Court. It has not been tried. There is nothing in Section 60A, first above referred to, that confers upon a party special privileges in this court contrary to the express prohibition of Section 96. The Legislature would not naturally expect that the entry of bills of exceptions in this court contrary to Section 96 would be necessary to the successful functioning of Section 60A. That section operates as an immediate direction to the trial court. An appellate court would not commonly be expected to concern itself with the order of cases on the list of a trial court.

The plaintiff relies upon the decision in Weil v. Boston Elevated Railway, 216 Mass. 545 , where it was held...