Norton v. Musterole Co., Inc.

• Decision Date: 19 May 1920
• Citation: 235 Mass. 587
• Parties: EMILY G. NORTON v. MUSTEROLE COMPANY, INCORPORATED.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

235 Mass. 587

EMILY G. NORTON v. MUSTEROLE COMPANY, INCORPORATED.

Supreme Judicial Court of Massachusetts, Middlesex.

May 19, 1920

March 2, 1920.

Present: RUGG, C.

J., BRALEY, CROSBY CARROLL, & JENNEY, JJ.

Practice, Civil Appeal, Abatement. Upon an appeal, under R.L.c. 173, Section 96, as amended by Sts. 1906, c.

342; 1910, c. 555 Section 4, from a judgment entered upon a motion by the plaintiff (the defendant not moving) after the sustaining of an answer in abatement of a writ, the record properly before this court consists only of the writ, the declaration, the answer in abatement, the motion for judgment, the order allowing the motion and the appeal, and does not include a memorandum of facts found by the judge or copies of affidavits and of documentary evidence submitted to the judge at the hearing upon the answer in abatement.

A finding of fact made by a judge of the Superior Court in an order sustaining an answer in abatement is not subject to review upon an appeal by the plaintiff from a judgment for the defendant entered in accordance with such order.

TORT for personal injuries resulting from use of a salve manufactured and sold by the defendant and alleged to contain ingredients so compounded as to be injurious and dangerous and unfit for use. Writ dated September 13, 1919.

The defendant, appearing specially, filed the plea in abatement described in the opinion. The plea was heard by Wait, J., and was sustained. Thereafter, the defendant not moving, the plaintiff moved that judgment be entered "pursuant to the order of court sustaining the answer in abatement." The motion was allowed by Hammond, J., and judgment was entered accordingly. The plaintiff appealed.

The printed record in this court contained copies of the plaintiff's claim of appeal, the writ, the declaration, the answer in abatement, the initialed statement described in the opinion, affidavits of C. F. Buescher, of Emily G. Norton, and of Harry C. Dunbar, Esquire, copy of a telegram from C. F. Buescher to Mr. Dunbar, copy of a letter from one J. Allison Barnes to Mr. Dunbar, the plaintiff's motion for judgment and a transcription of the docket entries.

H. C. Dunbar, for the plaintiff, submitted a brief.

P. D. Turner & Lee M.

Friedman, for the defendant.

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 jurisdiction of the court. The answer in abatement was sustained and judgment was entered for the defendant, from which the plaintiff has appealed.

It is provided by St. 1910, c. 555, Section 4, amending R.L.c. 173, Section 96; St. 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 . Naylor v. Nourse, 231 Mass. 341 , 343. Standish v. Old Colony Railroad, 129 Mass. 158. Regal v. Lyon, 212 Mass. 230 , and cases collected. ...