Matson v. Sbrega

• Citation: 145 N.E. 35,250 Mass. 138
• Parties: MATSON v. SBREGA.
• Decision Date: 18 October 1924
• Court: United States State Supreme Judicial Court of Massachusetts

250 Mass. 138

145 N.E. 35

MATSON

v.SBREGA.

Supreme Judicial Court of Massachusetts, Worcester.

Oct. 18, 1924.

Appeal from District Court, Appellate Division.

Action of tort by John Matson against Amedeo Sbrega for negligence in allowing water pipes to become defective and leaky. From order of the appellate division, deciding on report that there was reversible error in the district court, plaintiff appeals. Appeal dismissed.

J. G. Annala, of Fitchburg, for appellant.

RUGG, C. J.

This case originated in the First district court of Northern Worcester. Rulings of law made at the trial were reported for review. The appellate division of the Western district reversed one of those rulings and ordered that a new trial be had of the whole case. The plaintiff appealed from that decision and has entered the appeal in this court without awaiting the result of the new trial in the district court thus ordered by the appellate division.

The case is entered prematurely in this court. There must be a final and complete decision upon the merits of the whole controversy, so that, if there should be affirmance here, the district court would have nothing to do but to execute the judgment rendered. An order by the appellate division, if equivalent to a final settlement of the controversy, even though contrary to the decision of the judge of the district court, is sufficient basis for immediate entry of appeal in this court (Loanes v. Gast, 216 Mass. 197, 199, 103 N. E. 473;Britton v. Goodman, 235 Mass. 471, 126 N. E. 767), but an order by the appellate division for a new trial of facts in the district court is not a basis for the immediate entry of appeal in this court. The case at bar is governed in every particular by Real Property Co., Inc., v. Pitt, 230 Mass. 526, 120 N. E. 141, where the subject is discussed at large, and the authorities collected. Hall Publishing Co. v. McLaughlin, 230 Mass. 534, 120 N. E. 69;Georgia Railway & Power Co. v. Decatur, 262 U. S. 432, 437, 43 Sup. Ct. 613, 67 L. Ed. 1065;Arnold v. Guimarin & Co., 263 U. S. 427, 434, 44 Sup. Ct. 144, 68 L. Ed. 371. Illustrations of correct practice in accordance with the principles declared in Real Property Co., Inc., v. Pitt are found in Kenyon v. Suburban Realty Corp., 244 Mass. 571, 139 N. E. 172;Downey v. Levenson, 247 Mass. 358, 142 N. E. 85;Wright v. Graustein, 248 Mass. 205, 142 N. E. 797.

Appeal dismissed.