Gill v. Stretton

• Decision Date: 21 September 1937
• Citation: 298 Mass. 342,10 N.E.2d 185
• Parties: GILL v. STRETTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

298 Mass. 342

10 N.E.2d 185

GILL

v.STRETTON.

Supreme Judicial Court of Massachusetts, Middlesex.

Sept. 21, 1937.

Action of contract by Bridget M. Gill against William G. Stretton. Order by the Appellate Division for the Northern District dismissing a report by Morton, J., and plaintiff appeals.

Affirmed.Appeal from Appellate Division of District Court, Northern District; Morton, Judge.

John J. Enright, of Boston, for appellant.

K. L. Johnson, of Woburn, for appellee.

RUGG, Chief Justice.

The plaintiff seeks in this action of contract to recover money alleged to have been overpaid by her to the defendant, who performed labor and furnished material for her under a contract. There was pleaded in the answer of the defendant a general denial, payment, accord and satisfaction, and the statute of limitations. On January 4, 1936, the defendant filed interrogatories to be answered by the plaintiff, which were numbered 1 to 27, both inclusive. The defendant did not first obtain permission to file the interrogatories, nor show adequate cause for filing more than thirty interrogatories, but simply filed them in the clerk's office in the usual way. The first interrogatory asked for the full name and address. On January 23, 1936. the plaintiff filed answers, which were signed but not sworn to, of the tenor following: ‘1. Bridget M. Gill, 42 Prospect Street, Woburn, Mass. 2. The plaintiff respectfully declines to answer any of the interrogatories as filed to her to answer unless ordered to do so by the Court on the ground that it appears that the defendant has filed without leave of Court and without showing cause therefor more than the limited number of interrogatories including subdivisions thereof permitted to be filed under the interrogatory statute as amended.’ On February 5, 1936, after due notice to the attorney for the plaintiff but in the absence of such attorney, the defendant moved that the court order the plaintiff to answer interrogatories numbered 2 to 27, both inclusive. On the same day the court entered the following order: ‘the defendant's motion for further answers allowed, answer to be filed on or before February 15, 1936.’ The plaintiff seasonably filed a request for a report of this order to the Appellate Division.

On February 18, 1936, the defendant, without notice to the plaintiff, applied under Rule XIIIA (promulgated on January 20, 1934) of the District Courts for a nonsuit of the plaintiff for failure to file answers to the defendant's interrogatories as ordered to be answered on or before February 15, 1936. On February 19, 1936, the plaintiff was notified that the following order had been entered on February 18, 1936: ‘In the above entitled case, Motion allowed, plaintiff nonsuited, to be removed without further order if answers are filed within ten days.’ On February 21, 1936, the plaintiff duly made a request for a report to the Appellate Division of said order as made on February 18, 1936.

The Appellate Division found and decided that there was no prejudicial error in the order for the nonsuit of the plaintiff and ordered that the report be dismissed. The plaintiff appealed.

The entry of nonsuit of the plaintiff made by order of the court was a final disposition of the case. Karrick v. Wetmore, 210 Mass. 578, 97 N.E. 92;Farnum v. Brady, 269 Mass. 53, 168 N.E. 165;Hall v. Maloney, 269 Mass. 228, 168 N.E. 724. Report as to the correctness of that order was seasonably requested and properly made. That order was determinative of the action. ‘The judgment of nonsuit’ is a term frequently applied to the disposition of a case by nonsuit. Ensign v. Bartholomew, 1 Metc. 274, 276;Haskell v. Friend, 196 Mass. 198, 200, 81 N.E. 962, and cases cited. The judgment of nonsuit in the case at bar was a ‘final decision’ within the meaning of those words in g.l.(t/er.Ed.) c. 231, § 109, so that appeal lay to this court. The case at bar is distinguishable from cases like Real Property Co., Inc. v. Pitt, 230 Mass. 526, 120 N.E. 141; Beacon Tool & Machinery Co. v. National Products Mfg. Co., 252 Mass. 88, 147 N.E. 572; and Demers v. Scaramella, 252 Mass. 430, 147 N.E. 894, where there was no appeal from a final decision. It is also unlike Hammond v. Boston Terminal Co. (Mass.) 4 N.E.(2d) 328, where there was no report of questions connected with the order for default or assessment of damages. The case appears to be properly before us.

In the case at bar the...