Hall Publishing Co. v. MacLaughlin
| Citation | 230 Mass. 534 |
| Parties | HALL PUBLISHING COMPANY v. WALDO T. MacLAUGHLIN. |
| Decision Date | 25 June 1918 |
| Court | United States State Supreme Judicial Court of Massachusetts |
March 20 1918.
Present: RUGG, C J., BRALEY, DE COURCY, CROSBY, & CARROLL, JJ.
Municipal Court of the City of Boston, Appellate Division. Practice, Civil Appeal. Words, "Final decision." At a trial of an action of contract in the Municipal Court of the City of
Boston, the trial judge refused to give certain rulings asked for by the plaintiff, found for the defendant and reported the case to the
Appellate Division who made an order, giving the plaintiff leave to amend the declaration within ten days, in which case there should be a new trial upon the declaration as amended, and ordering that otherwise the report should be dismissed. Within the ten days the defendant claimed an appeal. Held, that the appeal claimed must be from that part of the order of the Appellate Division which gave the plaintiff leave to amend in ten days and ordered a new trial if the amendment were made. An order of the Appellate Division of the Municipal Court of the City of
Boston upon a report of an action of contract after a finding for the defendant, that the plaintiff be given leave to amend his declaration within ten days and that, if such amendment be made, a new trial shall be had, but that otherwise the report shall be dismissed, is not within the ten days a "final decision" of the Appellate Division from which only, under St. 1912, c. 649, Section 9, an appeal will lie to this court; and a claim of an appeal by the defendant within the ten days must be dismissed.
CONTRACT, with a declaration containing two counts, the second count, upon which only the trial was had, being upon a contract in writing of subscription to a book entitled "History of Aleppo Temple," to be published by the plaintiff. Writ in the Municipal Court of the City of Boston dated January 11, 1917.
The judge of the Municipal Court before whom the action was tried refused certain rulings asked for by the plaintiff, found for the defendant and reported the case to the Appellate Division, who made the following order on October 25, 1917: "The plaintiff is given leave to amend the second count of its declaration, in accordance with opinion filed herewith, within ten days after the entry of this order; if such amendment be made, a new trial is granted upon such amended count, otherwise the report is dismissed."
On November 1, 1917, the defendant filed a claim of appeal from the foregoing order.
E. M. Schwarzenberg, for the defendant. E. E. Wakefield, Jr., for the plaintiff.
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