Second Nat. Bank of Malden v. Leary

• Decision Date: 26 October 1933
• Citation: 187 N.E. 611,284 Mass. 321
• Parties: SECOND NAT. BANK OF MALDEN v. LEARY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

284 Mass. 321

187 N.E. 611

SECOND NAT. BANK OF MALDEN

v.LEARY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Oct. 26, 1933.

Exceptions from Superior Court, Middlesex County; J. M. Gibbs, Judge.

Action of summary process brought by the Second National Bank of Malden against John F. Leary and another.In the superior court, on appeal from the district court, the pleas in abatement of the defendants were overruled, and a verdict was directed in favor of the plaintiff, and the defendants bring exceptions.

Exceptions overruled.

A. P. Hardy, of Boston, for plaintiff.

J. F. Leary, of Medford, for defendants.

RUGG, Chief Justice.

This is an action of summary process for the possession of described premises and was brought in a district court.The writ was dated and served on the defendants on November 26, 1932, which was Saturday, and was returnable a week later on Saturday, December 3, 1932.Each defendant answered in identical form (1) a general denial (2) a special denial of holding the premises unlawfully and of the right of the plaintiff to the possession of the premises and in abatement setting up (3) that they were improperly joined as partiesdefendant and (4) that the officer's return showed upon its face that sufficient service of the writ had not been made.The defendants in their answer began by stating defences to the merits of the case and ended with setting up matter in so called abatement ‘so that the defendant had, in the phrase of Lord Coke, ‘misordered’ his pleas, and thereby lost the benefit of his plea in abatement,'O'Loughlin v. Bird, 128 Mass. 600, 602.This point has not been raised by the plaintiff and need not be considered.Judgment was entered for the plaintiff and the defendants appealed.When the case was reached for trial in the Superior Court in a session with a jury it was ordered by the judge that the case be transferred to a session presided over by another judge without a jury.No exception was taken to this order.When the pleas in abatement came on for hearing before the second judge, objection by the defendants on the ground that they were entitled to have the issues of fact raised in their answers in abatement tried by a jury was overruled subject to exception.The pleas in abatement were then heard by the second judge who ruled that so far as the matters therein set up were in abatement they were insufficient and were overruled.To this ruling the defendants excepted.Thereupon the case was ordered to trial on the merits before the first judge.When reached for trial before the first judge and a jury, the defendants objected, urged that they were entitled to a trial by jury on the issue of fact raised by their answers in abatement and ‘in connection with this objection and exception’(as stated in the exceptions) made an oral agreement.That agreement made by counsel for both parties was to facts showing a right in the plaintiff to recover verdict for possession, that on the day of the service of the writ both defendants were occupants of the premises, subject however to reservation of rights by counsel for the defendants‘to having the merits heard at this time, prior to the final and ultimate disposition of what he calls his pleas in abatement.’Verdict was directed accordingly in favor of the plaintiff for possession.The bill of exceptions was allowed by the first judge (who also ordered the verdict on the merits) and never appears to have been presented to the second judge who made the rulings concerning the answers in abatement.It does not appear that any separate bill of exceptions was filed touching those rulings.

This was irregular.The exceptions argued relate to the rulings made by the second judge.Although exceptions were taken to those rulings, he has allowed no bill of exceptions and so far as appears none was filed for presentation to him.Exceptions to rulings made by one judge cannot be allowed by another judge except in restricted and specified instances of which this is not one.Brooks v. Shaw, 197 Mass. 376, 378, 84 N. E. 110.Those exceptions are not rightly here.

The exception to trial on the merits before the disposition of the pleas in abatement does not raise anew the earlier exceptions.The pleas in abatement had been finally disposed of by the second judge who had ruled that they were insufficient and that the defendants were not entitled to trial by jury on them.Moreover, it would have...