Newburyport Institution For Savings v. Coffin

• Decision Date: 09 September 1905
• Citation: 189 Mass. 74,75 N.E. 81
• Parties: NEWBURYPORT INSTITUTION FOR v. COFFIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 74

75 N.E. 81

NEWBURYPORT INSTITUTION FOR v. COFFIN.

Supreme Judicial Court of Massachusetts, Essex.

September 9, 1905

COUNSEL

Nathl.

N Jones and Ernest Foss, for plaintiff.

Horace I. Bartlett, for defendant.

OPINION

LATHROP, J.

This is an action by trustee process upon a promissory note, dated February 6, 1865, secured by a mortgage of real estate and personal property. Interest was paid to April 18, 1899. The defendant admitted the cause of action set forth by the plaintiff. The trustee admitted funds, but suggested that they were claimed by Winthrop O. Coffin. The claimant then appeared, and the case was tried before a justice of the superior court without a jury. A finding was made for the plaintiff as against the claimant, and the trustee was charged upon his answer. This was at the May sitting, 1901. It appears that the judge intended to report the case to this court, and in October, 1901, drafts of a report were prepared by each counsel, which were submitted to the judge, together with a transcript of the evidence. The judge died before settling the report. Afterwards application was made to another judge of the superior court to report the case. He has certified that he has carefully examined the stenographic reports of the evidence given at the trial, 'and they do not seem to raise any question which should be reported.' He therefore refused to report the case, and ordered the trustee to be charged. The case comes before us on exceptions to the refusal of the judge to report the case; to the refusal of the judge to rule that, if the case failed to be reported through the death of the judge who tried the case the court had no power or authority to enter judgment on the finding without the consent of the claimant; and to the refusal of the judge to order a new trial.

Before St. 1878, p. 170, c. 231, the judges of the superior court had no power to report questions of law in civil cases tried without a jury. Terry v. Brightman, 129 Mass. 535. The law as it stands to-day is found in Rev. Laws, c. 173, § 105. The power to report is a discretionary power, and no statute imposes a duty upon a judge to make a report; nor is there any statute which allows a judge to make a report of a case to this court when he has not heard the parties. In the present case it is not contended that there were any exceptions taken at the trial of the case. If there had been any question of law could...