Terry v. Brightman
| Decision Date | 25 November 1882 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Joseph C. Terry v. James M. Brightman & another |
Bristol. Contract. After the former decision, reported 132 Mass. 318, this court sent a rescript to the Superior Court ordering "judgment for the defendant Brightman." At March term 1882 of the Superior Court, the clerk made an entry on the docket in accordance with the rescript. After such entry, at the same term, the plaintiff made a motion to set aside the judgment, and to amend the action by changing the same to a suit in equity. The defendant Brightman objected to the granting of the motion, on the ground that it was not in the power of the court to allow the same, and that no cause therefor was shown.
Staples J., ruled that the court had the power to set aside the judgment and to allow the amendment; and, as a matter of right and also in his discretion, ordered said judgment to be set aside and the amendment to be allowed. The defendant alleged exceptions.
Exceptions overruled.
A. N Lincoln, for the defendant.
J. M. Morton, for the plaintiff.
Under the modern practice in this Commonwealth, an appeal, bill of exceptions or report does not transfer to this court the whole case, but only the questions of law to be revised, unless the court, upon deciding those questions, sees fit to order the record of the whole case to be transferred to this court for trial or other disposition thereof. Pub. Sts. c. 150, §§ 7, 12; c. 153, §§ 8, 15. The case remains in the court in which it was brought, whether the Supreme Judicial Court for the county or the Superior Court.
When a rescript has been sent down by this court disposing of the questions of law raised, it is the duty of the clerk to make the entry on the docket according to the rescript. But this entry is not a judgment. As the jurisdiction of the case is in the court below, the effective final judgment must be entered by that court, either by a special order or by the general order usual at the close of the term.
The decisions of this court upon the questions of law reserved are binding upon the lower court. But when, after a rescript it appears to that court in which the case is pending that the ends of justice and the due determination of the rights of the parties require that the judgment should be suspended or the verdict set aside, it has the...
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Keljikian v. Star Brewing Co.
...Railroad Co., 114 Mass. 514;Commonwealth v. Scott, 123 Mass. 418;Platt v. Justices of the Superior Court, 124 Mass. 353, 355;Terry v. Brightman, 133 Mass. 536;Burbank v. Farnham, 220 Mass. 514, 107 N.E. 351,108 N.E. 492. But though the rescript take the restricted form of merely affirming t......
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Keljikian v. Star Brewing Co.
...Railroad, 114 Mass. 514 . Commonwealth v. Scott, 123 Mass. 418 . Platt v. Justices of the Superior Court, 124 Mass. 353 , 355. Terry v. Brightman, 133 Mass. 536. Burbank Farnham, 220 Mass. 514 . But though the rescript take the restricted form of merely affirming the order sustaining the de......
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Beacon Oil Co. v. Maniatis
...F. 263, 315. Perhaps the superior court might supply the omission in entering a new decree after rescript affirming the decree. Terry v. Brightman, 133 Mass. 536;Day v. Mills, 213 Mass. 585, 587, 100 N. E. 1113. To avoid all question, the decree is affirmed with costs, but with leave to the......
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Long v. George
...a decree upon that finding not inconsistent with the principles of law laid down by this court. West v. Platt, 124 Mass. 353;Terry v. Brightman, 133 Mass. 536;Gale v. Nickerson, 144 Mass. 415, 418, 11 N.E. 714;Kenerson v. Colgan, 164 Mass. 166, 168, 41 N.E. 122;Frost v. Courtis, 172 Mass. 4......