Pheeney v. Malden Coal Co.

• Decision Date: 30 March 1938
• Citation: 300 Mass. 60,14 N.E.2d 136
• Parties: PHEENEY v. MALDEN COAL CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

300 Mass. 60

14 N.E.2d 136

PHEENEY

v.MALDEN COAL CO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 30, 1938.

Action of tort by Ruth Pheeney against the Malden Coal Company for the value of a dog, owned by the plaintiff which was killed by a truck belonging to the defendant and operated by its employee. From an order of the superior court allowing the defendant's motion for judgment, the plaintiff appeals.

Appeal dismissed.Appeal from Superior Court, Middlesex County; Beaudreau, judge.

I. M. Davis and P. T. Smith, both of Boston, for plaintiff.

D. W. Kelley and W. I. Badger, both of Boston, for defendant.

RUGG, Chief Justice.

This is an action of tort to recover the value of a dog, owned by the plaintiff which was killed by a truck belonging to the defendant and being operated by its employee. The record as printed consists of copies of the writ, the declaration of the plaintiff, the answer of the defendant, an order of reference to an auditor, the report of the auditor, a motion for judgment for the defendant on the auditor's report, a paper termed ‘Memorandum’ signed by the trial judge whereby that motion was granted, and the appeal of the plaintiff from the allowance of that motion.

The defendant raises the point that the case is not properly before us on appeal. G.L.(Ter.Ed.) c. 231, § 96. Check v. Kaplan, 280 Mass. 170, 174, 182 N.E. 305. It has been settled by numerous decisions that under the present statutes actions at law in the Superior Court can be brought before this court by appeal in only three instances: Where there is (1) an order overruling or sustaining a demurrer on the ground that the facts pleaded do not in law support or answer the cause of action; (2) an order for judgment upon a case stated; and (3) an order decisive of the case founded upon matter of law apparent on the record. Samuel v. Page-Storms Drop Forge Co., 243 Mass. 133, 134, 137 N.E. 169;Mathews v. Hathaway Baking Co., 284 Mass. 328, 187 N.E. 359;Palumbo v. Bambini, Mass., 4 N.E.2d 240;Mercadante v. Aldorasi, Mass., 4 N.E.2d 443.

The plaintiff contends that the so-called ‘Memorandum’ (as to the use of this word, see Commonwealth v. O'Neil, 233 Mass. 535, 543, 124 N.E. 482) contains an error of law apparent on the record. That contention cannot be supported. That paper in a case like the present constitutes no part of the record. Davis v. Boston Elevated Railway Co., 235 Mass. 482, 495, 126 N.E. 841;In re Boyd, petitioner, 199 Mass. 262, 264, 85 N.E. 464;Abbott v. Walker, 204 Mass. 71, 74, 90 N.E. 405, 26 L.R.A.,N.S., 814. It could have been made a part of the record only by being embodied in a bill of exceptions or in a report made by the trial judge. Regal v. Lyon, 212 Mass. 230, 98 N.E. 698;Ballou v. Fitzpatrick, 283 Mass. 336, 186 N.E. 668. Although the case was referred to an auditor, there was no provision that his findings of fact should be final. Therefore, his report was not the equivalent of a case stated. It was no part of the record. Davis v. Gay, 141 Mass. 531, 6 N.E. 549;Gallagher v. Phinney, 284 Mass. 255, 257, 187 N.E. 612. The case is not rightly before us on appeal. For that reason, the appeal must be dismissed. Powdrell v. DuBois, 274 Mass. 106, 108, 109, 174 N.E. 220; Gallo v. Foley, Mass., 11 N.E.2d 803;Styrnbrough v. Cambridge...