Fuller v. Chapin

• Decision Date: 29 November 1895
• Citation: 42 N.E. 115,165 Mass. 1
• Parties: FULLER v. CHAPIN et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

165 Mass. 1

42 N.E. 115

FULLER v. CHAPIN et al. (two cases).

Supreme Judicial Court of Massachusetts, Hampden.

November 29, 1895

COUNSEL

E.H. Lathrop and J.B. Carroll, for appellant.

Robinson & Robinson, for appellees.

OPINION

MORTON, J.

In each of these cases the plaintiff asked for the framing of issues for a jury trial. The motions were denied, and the plaintiff appealed. The same question arises in the two cases, and they were argued and have been considered together. The motions related to an interlocutory matter, and the orders denying them were therefore interlocutory decrees. Eames v Eames, 16 Pick. 141. The statute gives the right of appeal, but expressly provides that it shall not suspend the decree appealed from, nor transfer the entire cause to the full court, nor any matter therein, except whether the order appealed from should be affirmed, reversed, or modified. Pub.St. c. 151, § 16. The practice in regard to hearing appeals from orders allowing or refusing issues in equity or probate causes does not seem, from the reported cases, to have been entirely uniform in this state. In some cases the appeal appears to have been heard before the case was ripe for final disposition. Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; Ross v. Insurance Co., 120 Mass. 113; Bank v. Moulton, 143 Mass. 543, 10 N.E. 251. And we infer that such is the practice in England. Williams v. Guest, 10 Ch.App. 467. In other cases the appeal, or, where exceptions were taken to the order, the exceptions, do not seem to have been heard till the case was ready to be finally disposed of. Newell v Homer, 120 Mass. 281; Doherty v O'Callaghan, 157 Mass. 90, 31 N.E. 726; Bourke v. Callanan, 160 Mass. 195, 35 N.E. 460. The same want of uniformity seems to have prevailed in regard to appeals from decrees overruling or sustaining demurrers, and in other interlocutory matters. In some cases the appeal appears to have been heard before the case was ready to be finally disposed of (Forbes v. Tuckerman, 115 Mass. 115; Hassam v. Barrett, Id. 256; Fay v. Vanderford, 154 Mass. 498, 28 N.E. 681), and in others not until this stage of the case was reached (Parker v. Flagg, 127 Mass. 28; Cheney v. Gleason, 125 Mass. 166, 180), which seems to be the English practice, unless the demurrer is such that its pendency delays the proceedings (London, etc., Ry. Co. v. Imperial, etc., Credit Ass'n, 3 Ch.App. 231). When the question raised is of such a character that it might be a bar to further proceedings, there is certainly a good deal of propriety in hearing it before compelling parties to go into the case at large. Greene v. Harris, 11 R.I. 5, 10. So, also, where the effect of delay would be to subject the appellant to irreparable loss, it would seem that there should be an early hearing (Lazenby v. White, 6 Ch.App. 89), and possibly in other cases. But it has been held that proceedings will not be suspended because parties will be put to unnecessary expense if the decree should be reversed. 2 Daniell, Ch.Prac. (3d Am.Ed.) 1550, and cases cited; London, etc., Ry. Co. v. Imperial, etc., Credit Ass'n, supra. No doubt the trouble and expense to which the parties might be subjected by being obliged to proceed with the case on the assumption that the decree was valid, if afterwards it should be reversed or modified on appeal, has had something to do with the apparent readiness of the courts to hear interlocutory appeals from orders allowing or disallowing issues before the case was ripe for a final decree. But we think that all interlocutory appeals must stand on the same footing, so far as regards the right to a summary hearing. The same considerations would exist oftentimes in favor of an early hearing upon an appeal from an order overruling a plea or demurrer, or in some other interlocutory matter, as upon one from an order allowing or disallowing issues, and would have much the same force at law as in equity, although the statutes relating to appeals and exceptions are not the same at law as in equity. It is settled, however, at law, for reasons which are stated in Lowd v. Brigham, 154 Mass. 107, 26 N.E. 104, that, generally speaking, no appeal from an exception to an interlocutory ruling or order will be heard "in this court until the case is either finally disposed of in the court in which it is pending, or is in a condition to be finally disposed of there if the exceptions...