Redfield v. Abbott Shoe Co.
| Citation | 139 N.E.2d 391,335 Mass. 208 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Decision Date | 03 January 1957 |
| Parties | Emily M. REDFIELD v. ABBOTT SHOE COMPANY. |
Maurice H. Kramer, Boston, for defendant.
Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and CUTTER, JJ.
This appeal is improperly before us and must be dismissed. The action, which is in contract by the holder and payee of a promissory note against the maker to recover the principal amount of $1,000 and interest, was brought in the Municipal Court of the City of Boston. The defendant filed a motion to dismiss for lack of jurisdiction, the ground being violation of G.L. (Ter.Ed.) c. 246, § 1, as appearing in St.1943, c. 17, § 1, in that a suit on a promissory note allegedly is not one of the exceptions to the requirement that a bond be furnished in actions commenced by trustee process where the ad damnum exceeds $1,000. The trial judge denied the motion, and reported his ruling to the Appellate Division. See G.L. (Ter.Ed.). c. 231, § 108, as amended. The Appellate Division dismissed a report. The defendant's appeal attempts to bring this interlocutory ruling here without further proceedings in the trial court.
An appeal to this court 'shall lie from the final decision of the appellate division of any district court.' G.L.(Ter.Ed.) c. 231, § 109. This means only a final decision. 'The test of the finality of a decision is whether it terminates the litigation on its merits, directs what judgment shall be entered, and leaves nothing to the judicial discretion of the trial court, and not whether it is the last word of the appellate division on the particular aspect of the litigation at the moment pending before it, directing additional proceedings before the trial judge in order that a final conclusion may thereafter be reached.' Real Property Co. Inc., v. Pitt, 230 Mass. 526, 528, 120 N.E. 141, 142; Endicott Johnson Corp. v. Hurwitz, 284 Mass. 378, 380, 187 N.E. 759; Hammond v. Boston Terminal Co., 295 Mass. 566, 567-568, 4 N.E.2d 328; Weiner v. Pictorial Paper Package Corp., 303 Mass. 123, 125-127, 20 N.E.2d 458.
The fact that in the case at bar a previous similar appeal was inadvertently considered on its merits is of no present import. Redfield v. Abbott Shoe Co., 333 Mass. 551, 132 N.E.2d 165.
In order to save the time of other courts and of ourselves in this matter, we see no harm in stating that there is nothing in the point which the defendant has argued. Under G.L. (Ter.Ed.) c. 246, § 1, as appearing in St.1943, c. 17, § 1, one exception to the...
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