in re McDonnell

• Decision Date: 24 February 1908
• Parties: In re McDONNELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 252

83 N.E. 675

In re McDONNELL.

Supreme Judicial Court of Massachusetts, Suffolk.

February 24, 1908

COUNSEL

H. N. Allin, for petitioner.

Samuel O. Reinstein, John H. Blanchard, and M. M. Harris, for Feigenspan.

OPINION

KNOWLTON C.J.

In this case there was a motion by the plaintiff for a new trial, for the reason, first, that the verdict was against the evidence and the weight of the evidence, and secondly, that it was against the law and the rulings of the presiding judge. At the hearing on this motion the defendant asked the judge to rule, among other things, 'that the superior court has no power to grant a new trial upon other grounds, after the expiration of the time for filing the same, than those specifically stated in the motion for a new trial.' In other requests he presented the same proposition in different forms. The commissioner's report shows that the judge did not give this ruling, and so far as appears, he did not apply the proposition of law in any way. The request was not made before the closing arguments upon the motion, and the judge may have treated it as not deserving of consideration for that reason.

We are of opinion that rule 45 of the superior court, which provides that 'requests for instructions or for rulings, in trials with or without jury, shall be made in writing before the closing arguments, unless special leave is given to present further requests later,' is not applicable to a hearing of this kind. It pertains only to 'trials with or without jury,' and we think that the word 'trial,' as here used, means something more than a hearing upon a motion. The rule refers to the closing arguments as a part of the trial, thus implying a proceeding in which there are different recognized stages, like the opening statement on each side, the presentation of evidence and the closing arguments. In the statute referred to in Com. v. Meserve, 156 Mass 61, 30 N.E. 166, the word is used in a broader sense. Without attempting to define the term in reference to all possible hearings or trials, we are of opinion that a hearing upon a motion for a new trial is not a trial within the meaning of the rule.

The revision of 1906 of the rules of the superior court, in which rule 45 appears, did not take effect until July 1st of that year, which was after the hearing in the present case. But on January 9, 1904, rule 48 of the edition of 1900 was amended by the insertion of...