Reed v. Home Sav. Bank

• Decision Date: 28 February 1881
• Citation: 130 Mass. 443
• Parties: Samuel G. Reed v. Home Savings Bank
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

130 Mass. 443

Samuel G. Reed v. Home Savings Bank

Supreme Court of Massachusetts

February 28, 1881

Argued March 9, 1880; November 22, 1879

Suffolk. Tort for malicious prosecution. Trial in the Superior Court before Bacon, J., who, after a verdict for the defendant reported the case, against the defendant's objection, for the determination of this court, in substance as follows:

The defendant is a corporation, with all the powers and privileges, and subject to all the duties, liabilities and restrictions, set forth in the general laws of the Commonwealth relating to institutions for savings.

At the request of the defendant, and against the objection and exception of the plaintiff, the judge ruled that the action could not be maintained; and directed a verdict for the defendant.

After the entry of the case in this court, the defendant moved to dismiss it for the following reasons: "1. That, from the ruling of the Superior Court at the trial of the cause, the plaintiff took exceptions, and presented the same to the court, and said exceptions were disallowed; and the plaintiff took no measures to prove the same in this court. 2. That having filed his bill of exceptions, and presented the same to the presiding justice, as allowed by law, the plaintiff could not in any other form bring the ruling objected to into this court for hearing and determination. 3. That the Superior Court has no power, after the expiration of three days after the verdict, to report the case for the determination of this court, without the consent and against the protest of the defendant, when at the trial exceptions were taken by the plaintiff, and no request was made by either party for a report of the case, and when the court did not at the trial, nor within three days after the verdict nor for many weeks afterwards, offer to report or inform the defendant that he intended or proposed to report, or should report, the case."

In support of the motion, a copy of the docket entries in the case during the year 1879 was produced, from which it appeared that the verdict for the defendant was rendered on April 25, and on the same day the plaintiff filed a bill of exceptions; that on June 27 the exceptions were disallowed for want of notice of the filing to the adverse party, and, on the same day, the case was "continued nisi;" and that on July 1 the report was filed.

New trial ordered.

C. R. Train & J. O. Teele, for the defendant.

F. S. Hesseltine, for the plaintiff.

Gray, C. J., Lord, J. Morton & Soule, JJ., Endicott, & Field, JJ., absent.

OPINION

Gray; Lord

Gray, C. J.

The authority of the Superior Court, at its discretion, to reserve upon report, after verdict and before judgment in a civil action, for the determination of this court, any ruling in matter of law distinctly objected to at the trial, is not subject to any such limit in point of time as the filing and presentment of exceptions; and is not affected by the question whether the party aggrieved has or has not formally alleged and duly presented exceptions to the ruling objected to. Gen. Sts. c. 115, §§ 6-8.

It cannot be doubted that the report of a question of law raised at the trial may be filed by the judge at any time during the same term at which the verdict is returned. The effect of an entry, after verdict and before judgment, of a general continuance of the case to the next term is to keep the case open for any judicial action that might have been had at the term from which it was continued; and a common continuance nisi has the same effect, unless the court disposes of the case in the intervening vacation.

By the copy of the docket entries, annexed to the defendant's motion, this case appears to have been continued nisi from the term at which the verdict was returned, and the report of the judge appears to have been filed on the first day of the next term. The entry of "continued nisi" is not limited in any way; it cannot have been ordered for the purpose of considering the exceptions, because they were disallowed on the very day on which it was made; and it is difficult to imagine any other object of the continuance than to prepare a report of the question of law raised at the trial for the determination of this court. We are therefore of opinion that the report was seasonably filed and must

Stand for argument.

The case was subsequently argued by the same counsel upon the question presented by the report.

Lord J. It is too late to discuss the question, once much debated, whether a corporation can commit a trespass, or is liable in an action on the case, or subject generally to actions of tort as individuals are. The books of reports for a quarter of a century show that a very large proportion of actions of this nature, both for nonfeasance and for misfeasance, are against corporations.

It was contended at the argument, that an action for malicious prosecution so differs from other actions that it cannot be maintained against a corporation. But although, in order to maintain such an action, both malice and...