Nickerson v. Glines
| Decision Date | 27 February 1915 |
| Citation | 107 N.E. 942,220 Mass. 333 |
| Parties | NICKERSON v. GLINES et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Horatio N. Allin, of Boston, for appellant.
Elder Whitman & Barnum, of Boston, for appellees.
This is an action of tort wherein the plaintiff alleges that the defendants, through a conspiracy, defrauded him out of large sums of money. Upon motion of the defendants Glines, Burrage and Rich, the plaintiff was ordered to file detailed specifications of the acts and misrepresentations relied on. Prior to making this order, the court was informed that a bill in equity brought by the plaintiff through his present counsel against the defendants other than Glines Burrage and Rich, had been referred to a master, before whom the taking of evidence stenographically reported had consumed many days and had been completed, and the defendants Glines and Burrage both had testified. Then the plaintiff filed a paper entitled 'Bill of Particulars,' which contained some allegations in addition to those of his declaration. These defendants then moved that these specifications be stricken from the files as irresponsive and irrelevant, and that new and sufficient specifications in accordance with the previous order of the court be filed within a time to be limited, and that, in default thereof, the plaintiff's action be dismissed. Upon hearing this motion, the court ordered that the specifications required by the earlier order be filed on or before a certain date, and that, if that order were not complied with, the plaintiff should be nonsuited. A statement then was filed by the plaintiff in substance to the effect that he was unable to give further details respecting the tortious acts of these defendants. Thereupon the defendants moved for a nonsuit. At the hearing upon this motion, the court found from the face of the record and also from the statements of counsel made at the various hearings that the particulars filed were not ample in form. Thereupon an order was entered setting forth the finding that there had not been a compliance with the orders for specifications and the fact that the defendant in open court had declined further opportunity to file additional specifications and nonsuiting the plaintiff as to these three defendants for failure to comply with the previous orders for filing of specifications.
It has been said many times that the power to order particulars or specifications rests in the discretion of the trial court. Gardner v. Gardner, 2 Gray, 434; Blake v. Everett, 1 Allen, 248, 251; Com. v. Wood, 4 Gray, 11, 13; Harrington v. Harrington, 107 Mass. 329, 334; Hines v. Stanley & Co., 199 Mass. 522, 527, 85 N.E. 851; Com. v. King, 202 Mass. 379, 384, 88 N.E. 454. It is the general rule that matters which rest in the judicial discretion of the trial court cannot be reviewed by this court. That question most frequently arises upon motions for new trials or to set aside verdicts. But the same principle applies broadly to discretionary rulings. It finds illustrations in orders as to filing further answers to interrogatories, the allowance of amendments, the time of introduction of evidence, allowance of leading questions, continuances, requiring election between counts, and refusal to charge upon indecisive parts of evidence or in the phrase of a request if the substance is given. It is, however, a sound judicial and not an arbitrary discretion which must be exercised. Simmons v. Fish, 210 Mass. 563, 572, 97 N.E. 102, Ann. Cas. 1912D, 588. Abuse of discretion as to specifications becomes error of law and is subject to revision. Powers v. Bergman, 197 Mass. 39, 83 N.E. 7.
There is nothing in the case at bar to indicate that the superior court was not acting well within its powers. It would be enough to dispose of the case to say that the finding, that the specifications filed were not a compliance with the order, was based in part upon statements of counsel...
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