Norton v. Musterole Co. Inc

• Decision Date: 20 May 1920
• Citation: 127 N.E. 431,235 Mass. 587
• Parties: NORTON v. MUSTEROLE CO., Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 587

127 N.E. 431

NORTON

v.MUSTEROLE CO., Inc.

Supreme Judicial Court of Massachusetts, Middlesex.

May 20, 1920.

Appeal from Superior Court, Middlesex County; William Cushing Wait, Judge.

Action by Emily G. Norton against the Musterole Company, Incorporated.From an order sustaining defendant's answer in abatement, and from judgment thereon, plaintiff appeals.Judgment affirmed.

H. C. Dunbar, of Boston, for appellant.

Lee M. Friedman and Paul D. Turner, both of Boston, and Friedman & Friedman, for appellee.

RUGG, C. J.

This is an action at law sounding in tort.The defendant appeared specially and answered in abatement that it was a foreign corporation having no principal or usual place of business in the commonwealth, and that it was not engaged in or soliciting business within the commonwealth, and that it had here no agent authorized to receive service of process, and that it had not been made subject to the jurisidiction of the court.The answer in abatement was sustained and judgment entered for the defendant, from which the plaintiff has appealed.

It is provided by St. 1910, c. 555, § 4, amendingR. L. c. 173, § 96, andSt. 1906, c. 342, that--

‘A party who is aggrieved by a judgment of the superior court upon a demurrer, * * * or a party who is aggrieved by any other judgment founded upon matter of law apparent on the record in any proceeding, may appeal therefrom to the supreme judicial court.’

Therefore an appeal in an action at law brings before this court for consideration only ‘matter of law apparent on the record.’The record before us consists of the writ, the plaintiff's declaration, the answer in abatement, a motion for judgment, the allowance of the same and the plaintiff's appeal.There is no error of law apparent on the face of these papers.

There is printed among other papers one not entitled nor signed, although identified by initials.Its words are:

‘Nov. 13, 1919.I find that the facts set out in the affidavit of C. F. Buescher, Emily G. Norton and Harry C. Dunbar, Esq., are true.I find and rule that the Musterole Company, Inc., is not ‘engaged in or soliciting business' in this commonwealth.This finding is based on said affidavits and inferences therefrom.The plea in abatement is found to be true and is sustained.’

If it be assumed that this was a finding of facts by a judge of the superior court, it is no part of the record because not signed and embodied in a bill of exceptions or report.Cressey v. Cressey, 213 Mass. 191, 99 N. E. 972;Naylor v. Nourse, 231 Mass. 341, 343, 121 N. E. 26;Standish v. Old Colony R. R., 129 Mass. 158;Regal v. Lyon, 212 Mass. 230, 98 N. E. 698, and cases collected;Swan v. Justices of the Superior Court, 222 Mass. 542, 545, 111 N. E. 386.

If this unsigned paper be treated as a direction to the clerk concerning an entry to be made, and if it can be said that because the substance of this paper was extended on the ‘docket record,’ copy of which is before us, and that therefore it has become a part of the record of the case(Shanahan v. Boston & Northern St. Ry., 193 Mass. 412, 413, 79 N. E. 751;section 1, General Rules as to Records Promulgated by the Justices of the Supreme Judicial Court under St. 1917, c. 206), still it is only a finding of fact and decision.Manifestly a simple finding of fact discloses no error of law and cannot be revised by this court.It must be accepted as true.This court in actions at law does not weigh evidence or revise findings of fact.Atlantic Maritime Co. v. Gloucester, 228 Mass. 519, 522, 117 N. E. 924.

The affidavits doubtless were received and treated as evidence.They are merely evidence, however, even though in writing and left among the papers in the case.They are no part of the record.The usual way to bring evidence before this court in an action at law is by...