Gilbert v. C.M. Fauci Co.

• Citation: 34 N.E.2d 685,309 Mass. 271
• Parties: JOHN GILBERT, JR., CO. et al. v. C. M. FAUCI CO.
• Decision Date: 29 May 1941
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

309 Mass. 271

34 N.E.2d 685

JOHN GILBERT, JR., CO. et al.

v.C. M. FAUCI CO.

Supreme Judicial Court of Massachusetts, Middlesex.

May 29, 1941.

Report from Superior Court, Middlesex County; Forte, Judge.

Suit in equity by the John Gilbert, Jr., Company and others against the C. M. Fauci Company to enforce certain provisions of the Fair Trade Law for plaintiffs' benefit. On report of a judge of the Superior Court.

Report dismissed.

Argued before FIELD, C. J., and DONAHUE, QUA, DOLAN, and COX, JJ.

M. K. Greenberg, of Boston, for plaintiff.

W. P. Murray and V. H. Tanner, both of Boston, for defendant.

QUA, Justice.

Plainly this cause is not properly before us in accordance with the pertinent statutes. It is a bill in equity to enforce for the plaintiff's benefit certain provisions of the fair trade law, G.L.(Ter.Ed.) c. 93, §§ 14A to 14C, inserted by St. 1937, c. 398, as amended. An attempt is made to bring the case here upon a ‘report’ of a judge of the Superior Court. The ‘report’ recites that the cause ‘came on to be heard’ after a judge of the Superior Court other than the judge who made the ‘report’ and ‘overruled a demurrer’ to the bill; that upon hearing arguments of counsel the judge making the so-called report ‘because of the opinion that the questions raised by the demurrer so affect the merits of the controversy that the matters ought to be determinedby the Supreme Judicial Court before further proceedings in this court’; and that he therefore reports ‘the questions raised by the demurrer’ and stays all further proceedings, except such as may be necessary to preserve the rights of the parties.

It does not appear from this ‘report’ that the judge who signed it took any action whatever in relation to the case, except to attempt to make a report to this court of some action previously taken by another judge in the nature of overruling a demurrer. A demurrer is printed with the record, but no order or decree upon it by any judge appears in the record, so that we do not even know what order or decree was entered by the judge who first dealt with the case, except that the ‘report’ describes his action as the overruling of a demurrer.

The self-evident difficulty with the ‘report’ is that the judge who signed it did not make the ruling which he seeks to report. The power of a judge of the Superior Court to report to this court questions of law arising upon an interlocutory decree or order in a suit in equity is derived entirely from G.L.(Ter.Ed.) c. 214, § 30. From a reading of that section it is clear that ‘the justice’ to whom the power is granted is the justice who makes the ‘interlocutory decree or order’ and not some other justice. This is the grammatical sense of the words employed. It has been recognized as such by the language used in several of our decisions. Fuller v. Chapin, 165 Mass. 1, 4, 42 N.E. 115;Knox v. Springfield, 273 Mass. 109, 110, 173 N.E. 439; Laverty v. Associated Gas & Electric Securities Co., Inc., 300 Mass. 79, 81, 13 N.E.2d 947;Rowe v. Bragg, 300 Mass. 298, 299, 15 N.E.2d 230. The same rule applies to reports after hearings on the merits under the express wording of G.L.(Ter.Ed.) c. 214, § 31 (see, however, G.L.(Ter.Ed.) c. 231, § 112, applying to cases where the judge fails to make a report by reason of death, disability or resignation), to reports in actions at law both of interlocutory and of final matters under G.L.(Ter.Ed.) c. 231, § 111, Newburyport Institution for Savings v. Coffin, 189 Mass. 74, 75, 75 N.E. 81;Berenson v. London & Lancashire Fire Ins. Co., 201 Mass. 172, 173, 87 N.E. 687;Walters v. Jackson & Newton Co., 231 Mass. 247, 120 N.E. 688;Sterling v. Frederick Leyland & Co., Ltd., 242 Mass. 8, 12, 136 N.E. 60, and to bills of exceptions under G.L.(Ter.Ed.) c. 231, § 113. Brooks v. Shaw, 197 Mass. 376, 378, 379, 84 N.E. 110;Second National Bank of Malden v. Leary, 284 Mass. 321, 324, 187 N.E. 611.

One reason for this rule in its application to interlocutory matters is that the decision to make a report of such matters involves the exercise of a substantial judicial discretion. This court should not be flooded with cases in their early stages. The questions reported may become immaterial when the issues and facts are fully developed. Interlocutory matters should be reported only where it appears that they present serious questions likely to be...