Paper Trucking Co. v. Russo
| Decision Date | 30 November 1932 |
| Citation | 281 Mass. 209,183 N.E. 149 |
| Parties | PAPER TRUCKING CO. v. RUSSO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division; E. Adlow, Judge.
Action by the Paper Trucking Company against Nicholas Russo. From order of Appellate Division denying plaintiff's petition to establish report, plaintiff appeals.
Affirmed.
Nathan Parnes, of Mattapan, for appellant.
Harold F. Tracy, of Boston, for appellee.
This is an action of tort to recover compensation for property damage alleged to have been sustained by the plaintiff through the negligence of the defendant in the operation of an automobile. It comes before us on the plaintiff's appeal from an order of the Appellate Division denying its petition to establish report. The petition sets out, in substance, that the parties at the time of trial submitted the case upon an ‘Agreed Statement of Facts,’ which was in truth a case stated; that the case was taken under advisement, and, before a finding was made, motion by the defendant that the case be reopened in order that further evidence be heard was allowed by the judge and the action reopened. Subsequently, but prior to the hearing of additional evidence, it was ordered that the action be discharged from further consideration and restored to the docket for trial, and draft report setting out grievances arising from this action was disallowed. If it be assumed in favor of the plaintiff (see however Cohen v. Berkowitz, 215 Mass. 68, 102 N. E. 124;Real Property Co., Inc., v. Pitt, 230 Mass. 526, 120 N. E. 141) that the case is properly here, and since the result to the plaintiff must be the same in any event, there appears to be no objection to stating the grounds of substantive law which lead to that result. Commonwealth v. McNary, 246 Mass. 46, 48, 140 N. E. 255, 29 A. L. R. 483. It was agreed by the parties in open court and is shown by docket entries that prior to the filing of the petition to establish the report the plaintiff had become nonsuited.
The power of the judge was ample to discharge the case from further consideration and order it restored to the docket for trial. The reasons which led to this action on the part of the trial judge are not set forth in the record and therefore the only question raised is whether the judge had power to take the action. Hale v. Blanchard, 242 Mass. 262, 264, 136 N. E. 102. If the conscience of the trial judge led him to the conclusion...
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Gechijian v. Richmond Ins. Co.
...action of the judge was not inconsistent with the terms of the stipulation but in any event he was not bound by it. Paper Trucking Co. v. Russo, 281 Mass. 209, 183 N.E. 149;Symmes Arlington Hospital, Inc. v. Arlington, 292 Mass. 162, 197 N.E. 677. There is nothing in the various other excep......
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...the court has the power to discharge the case stated and order that the action be tried in normal course. Paper Trucking Co. v. Russo, 281 Mass. 209, 183 N.E. 149 (1932). But no such procedure was followed here. Accordingly, we believe that insofar as this judgment is concerned, it must be ......
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...561; Ambrozewicz v. Lane, 283 Mass. 141, 186 N.E. 51; O'Reilly v. O'Reilly, 293 Mass. 332, 199 N.E. 741; Paper Trucking Co. v. Russo, 281 Mass. 209, 183 N.E. 149; Capano v. Melchionno, 297 Mass. 1, 15, 7 N.E.2d 593; Malone v. Bianchi, 318 Mass. 179, 182-183, 61 N.E.2d 1, 161 A.L.R. There is......
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