Gloucester Mut. Fishing Ins. Co. v. Hall

• Decision Date: 29 November 1911
• Citation: 210 Mass. 332,96 N.E. 679
• Parties: GLOUCESTER MUT. FISHING INS. CO. v. HALL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 332

96 N.E. 679

GLOUCESTER MUT. FISHING INS. CO. v. HALL.

Supreme Judicial Court of Massachusetts, Essex.

November 29, 1911

COUNSEL

Frederick H. Tarr, for plaintiff.

Carver Wardner & Goodwin and J. Cavanagh, for defendant.

OPINION

RUGG C.J.

A verdict was rendered in this case on May 31, 1910. The plaintiff filed a motion for a new trial on the following day, and deposited in the post office at Gloucester a copy of the motion with a notice stating that it had been filed that day, postage prepaid, and properly addressed to the defendant's counsel at his office in Boston, where it was delivered on the morning of June 2d, two days after the return of the verdict. The question is whether this gave the superior court jurisdiction to pass upon the merits of the motion under rule 42 of the rules of that court, whose material language is as follows: 'No motion for a new trial shall be sustained * * * either on account of any opinions or decisions of the judge, given in the course of the trial, or because the verdict is alleged to be against evidence or the weight of evidence, unless within three days after the verdict is returned, the counsel of the party complaining * * * shall file a motion for a new trial * * * and cause a copy of the motion to be delivered to the adverse counsel on the day the same is filed or within such further time as the court may allow.' No further time was allowed by the court in the present case.

The case could be decided on the narrow ground that, as five causes for setting aside the verdict were assigned in the motion, the record does not show upon what grounds the verdict was in fact set aside. The excepting party does not make it appear that he has suffered injury, for the reason that rule 41 does not apply to all motions for new trial, but only to those therein specified, and the court may have granted this new trial on other grounds, such as 'accident, mistake or misfortune in the conduct of the trial.' Ellis v. Ginsburg, 163 Mass. 143, 146, 39 N.E. 800, and cases cited.

But the same result is reached upon broader considerations. A fair interpretation of the rules of the superior court leads to the conclusion that they were complied with. Rule 27 provides that 'a notice required by, or given in pursuance of these rules, shall be in writing, shall be served by delivering the same personally to the adverse party, or his attorney, or depositing it in the postoffice, directed to him, postage prepaid. * * *' It is to be noted that rule 41 requires the motion 'to be delivered to the adverse counsel,' while rule 27 speaks of 'delivering the same personally.' This has some tendency to indicate that 'delivered,' as used in the latter rule, standing alone does not mean a physical passing into the hand of the adversary attorney, but may be satisfied by some action which falls short of a handing over to him personally. 'Delivery' is variously defined by lexicographers as meaning: To give; to place in the power or possession of another; to part with to another; to make or...