Oliver Ditson Co. v. Testa

• Citation: 103 N.E. 381,216 Mass. 123
• Parties: OLIVER DITSON CO. v. TESTA.
• Decision Date: 25 November 1913
• Court: United States State Supreme Judicial Court of Massachusetts

216 Mass. 123

103 N.E. 381

OLIVER DITSON CO. v. TESTA.

Supreme Judicial Court of Massachusetts, Suffolk.

November 25, 1913

COUNSEL

Chas Toye, of Boston, for appellant.

A. M Schwarz and S. A. Dearborn, both of Boston, for appellee.

OPINION

RUGG. C.J.

This case was brought in the municipal court for the city of Boston, where the defendant appeared specially and filed a plea setting forth that he was not a resident of Boston as alleged in the writ, and that he had within the Commonwealth no last and usual place of abode, but that he was a nonresident of the commonwealth. The case was disposed of in the municipal court without the filing of any further answer or plea or the raising of any other issue. The case was entered on appeal in the superior court on the first Monday of December, 1911, and the defendant on the same day claimed a trial by jury upon the facts alleged in his plea. He had a right to such a trial. O'Loughlin v Bird, 128 Mass. 600. On January 6, 1912, the plaintiff filed a motion that the defendant's plea be disallowed, and on January 11, 1912, there was entered the order: 'Plea overruled for want of prosecution.' It must be regarded as settled that under the circumstances here disclosed this order of the superior court was a judgment within the meaning of R. L. c. 173,§ 96, as amended by St. 1910, c. 555, § 4, so that, on an appeal (taken properly and entered after the case is ripe for final judgment) questions of law appearing on the record are rightly before this court, and that the sole remedy is not by exception. Maley v. Moshier, 160 Mass. 415, 36 N.E. 64; Commonwealth v. Dunleay, 157 Mass. 386, 32 N.E. 356; Commonwealth v. McCormack, 126 Mass. 258; Sprague v. Auffmordt, 183 Mass. 7, 66 N.E. 416. The precise course of practice here disclosed appears to have been followed in Kimball v. Sweet, 168 Mass. 105, 46 N.E. 409. The language in Cummings v. Ayer, 188 Mass. 292, at page 293, 74 N.E. 336, simply means that the right to enter an appeal in this court is in abeyance until a final judgment, and not that the right to claim the appeal is suspended.

If the plaintiff's motion, filed on January 6, 1912, that 'the defendant's plea in abatement be disallowed,' be treated as a motion that the plea be adjudged insufficient as matter of law, it could not have been granted. The plea not having been demurred to was sufficient at that stage to raise the issue of fact stated in it. If the motion was intended to be the basis for evidence outside the record, it came within the provisions of the twenty-ninth common-law rule of the superior court, which is as follows: 'The court will not hear any motion grounded on facts unless the facts are verified by affidavit or are apparent upon the record and the papers on file in the case, or are agreed and stated in writing and signed by the parties or their attorneys. The same rule shall be applied to all facts relied on in opposing any motion.' The motion at bar was not accompanied by any affidavit of facts. It did not relate to anything upon the record, for there is nothing upon the record or in the papers on file in the case to support the contention that the plea should be overruled. No agreed facts signed by the parties or their attorneys was filed. It cannot be assumed that the superior court violated its rule. 'A rule of court has the force of law and is binding upon a judge, and he has no authority to dispense with it.' Pratt v. Pratt, 157 Mass. 503, 505, 32 N.E....