Stafford v. Commonwealth Co.
| Decision Date | 04 April 1928 |
| Citation | 160 N.E. 820,263 Mass. 240 |
| Parties | STAFFORD v. COMMONWEALTH CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Municipal Court of Boston, Appellate Division; Michael J. Murray, Associate Judge.
Action by Walter R. Stafford against the Commonwealth Company. From an order of the appellate division of the municipal court of Boston vacating the finding of the trial judge and ordering a new trial, and from an order of the appellate division denying a petition to prove a report filed by another judge of that court after retrial, and discharging the report, defendant appeals. Order denying petition to prove report affirmed, order vacating finding and ordering new trial affirmed, and judgment ordered entered for plaintiff on findings at second trial.
W. J. Paquet, of Boston, for appellant.
H. P. Brown, of Boston, for appellee.
This is an action of tort to recover for personal injuries alleged to have been caused by the defendant's agent by reason of the negligent operation of an automobile. The case is before us on two appeals, one from a final order of the appellate division of the municipal court of the city of Boston vacating the finding of the trial judge and ordering a new trial; the other from a final order of the appellate division denying a petition by the defendant to prove a report filed by another judge of that court after retrial, and discharging the report.
The proceedings in the municipal court, shortly stated, were as follows: At the first trial the presiding judge found for the defendant. The appellate division made the order ‘Finding vacated; new trial ordered.’ The defendant appealed from that order. The case was tried a second time before another judge of the municipal court who found in favor of the plaintiff. On June 7, 1927, the defendant requested a report, and on July 2, 1927, the judge filed a report. The defendant filed a petition to establish a report in accordance with rule 40 of the municipal court. The petition so filed is not before us, and whether it was or not in proper form we have no means of determining. On September 21, 1927, the plaintiff filed a motion to dismiss the petition to establish a report for reasons therein set forth; on October 6, 1927, the appellate division made this order: ‘Petition to prove report denied-Report discharged.'
[1] We cannot say that there was error in denying the petition to prove the report as there is nothing in the record to show error. Herrick v. Waitt, 224 Mass. 415, 113 N. E. 205;Boston Bar Association v. Casey, 227 Mass. 46, 51, 116 N. E. 541;Martin's Case, 231 Mass. 402, 121 N. E. 152. There is, however, printed in the record ‘Defendant's Request for Report,’ which reads as follows:
‘Now comes the defendant in the above-entitled action and says that at the trial of this case it requested certain rulings which were denied and claiming to be aggrieved thereby, it requests that the matter be reported to the Appellate Division for determination.'
It is plain that this request for a report does not comply with rule 36 of the municipal court, namely:
‘A request for a report to the appellate division shall contain a clear and concise statement of the ruling upon which a rehearing is requested, sufficiently full and accurate for identification.'
It is apparent that the appellate division rightly discharged the report on the ground that the defendant had not shown itself to be entitled to a report.
[2] In these circumstances there remains for consideration the appeal...
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...final decision taken. Beacon Tool & Machinery Co. v. National Products Manuf. Co. 252 Mass. 88, 91, 147 N.E. 572;Stafford v. Commonwealth Co. 263 Mass. 240, 160 N.E. 820. Apparently upon the same theory that an interlocutory decision by an appellate division is appealable, in Daniels v. Coh......
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Weiner v. Pictorial Paper Package Corp.
...at the first trial, the . . . [plaintiff] is entitled to judgment in accordance with the finding at the first trial." Stafford v. Commonwealth Co. 263 Mass. 240 , 242. See also Downey v. Levenson, 247 Mass. 358 , The Appellate Division had no jurisdiction of anything except the correctness ......
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Ahern v. Towle
... ... the plaintiff rendered identification of the disputed rulings ... and refusals to rule impossible or difficult. Stafford v ... Commonwealth, 263 Mass. 240 , 242, Rollins v ... Ferry, 284 Mass. 488 , 489, and Almeida v ... Alsdorf, 291 Mass. 115 , 116, cited by the ... ...
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Barton v. City of Cambridge
...were that the request for a report failed to identify in any way the particular rulings to which it was directed. Stafford v. Commonwealth Co., 263 Mass. 240, 242, 160 N.E. 820, and Almeida v. Alsdorf, 291 Mass. 115, 196 N.E. 185, are similar. In Ahern v. Towle, 310 Mass. 695, 696, 697, 39 ......