Terry v. Brightman

• Decision Date: 28 October 1880
• Citation: 129 Mass. 535
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Joseph C. Terry v. James M. Brightman & another

129 Mass. 535

Joseph C. Terry v. James M. Brightman & another

Supreme Court of Massachusetts

October 28, 1880

Bristol. Contract by Joseph C. Terry against James M Brightman and William H. Clay, to recover $ 3600 for the charter of the steamer Border City. Trial in the Superior Court, before Putnam, J., who made the following report thereof:

"The case was heard by the court without a jury, and the court found the following facts: The plaintiff was the agent of the owners of said steamer, and on September 6, 1877, as such agent, entered into an indenture with the defendants for the chartering of said steamer, a copy of which indenture is annexed. ^[*] At the time of the making of this indenture, and at the time this action was brought, there were nineteen part-owners of said steamer. The plaintiff was the owner of two thirty-second parts, and the defendant Brightman was the owner of thirteen sixty-fourth parts. The other defendant, Clay, was not an owner. Clay was defaulted and Brightman alone defended this suit, and contended that upon the foregoing facts, the plaintiff could not recover in this action in his own name.

"I find upon the facts that the amount which the plaintiff is entitled to recover, if the action can be maintained, is the sum of $ 1906. And now, by agreement of parties, and before the finding of the court is entered, the case is reported for the determination of the Supreme Judicial Court upon the questions of law arising upon the foregoing facts. If the action can be maintained by the plaintiff, he is entitled to recover the sum of $ 1906, with interest from the date of the writ, and judgment is to be entered for him for that sum. If the plaintiff is not entitled to maintain this action, judgment is to be entered for the defendant."

Report dismissed.

J. M. Morton, Jr. & A. J. Jennings, for the plaintiff.

A. N. Lincoln, for the defendants.

Gray, C. J. Ames & Endicott, JJ., absent.

OPINION

Gray, C. J.

The justices of this court have long had the power of reserving and reporting, at their discretion, at any stage of the case, for the determination of the full court, questions of law arising in any trial or other proceeding, civil or criminal; and this power has been recognized in each revision of the statutes of the Commonwealth. Rev. Sts. c. 81, § 26, and note of Commissioners. Gen. Sts. c. 112, § 10; c. 113, § 15. Shaw, C. J., in Higbee v. Bacon, 11 Pick. 423, 428, 429.

But the Legislature has never seen fit to entrust so large a power to the judges of any inferior court, who have no share in discharging the burden thus imposed upon the full bench of this court. In criminal cases, the Court of Common Pleas and the Superior Court have been authorized to report, after conviction, and at the desire or with the consent of the defendant, important or doubtful questions of law; but neither of those courts has ever been authorized to report before conviction. St. 1832, c. 130, § 5. Rev. Sts. c. 138, § 12. Gen. Sts. c. 173, § 8. Commonwealth v. Byrnes, 126 Mass. 248. In civil cases, the judges of the Court of Common Pleas had no authority to reserve questions of law upon report. Goddard v. Perkins, 9 Gray 411, 412. Nor had the judges of the Superior Court of the County of Suffolk. St. 1855, c. 449. Upon the establishment of the Superior Court having jurisdiction throughout the Commonwealth, the judges thereof were authorized to report such questions after verdict only; and before the St. of 1878, c. 231, they had no power to report questions of law in civil cases tried without a jury. St. 1859, c. 196, § 32. Gen. Sts. c. 115, § 6. Lincoln v. Parsons, 1 Allen 388. Bearce v. Bowker, 115 Mass. 129. Commonwealth v. Dowdican's Bail, 115 Mass. 133.

The St. of 1869, c. 438, which empowered the Superior Court, by consent of the parties to the suit, to report before verdict questions of law for the determination of this court, and thus for the first time enabled the judges of a lower court to call for the advice of the court of ultimate appeal in advance, before performing their own appropriate judicial functions as the court of original jurisdiction, was found extremely inconvenient in practice, by the frequent sending up to this court of questions obscurely and imperfectly presented for want of a full trial in the court below, and which, if the case had been fully tried there, might have become immaterial to the final result.

The St of 1878, c. 231, has made important changes in the powers of the judges of the Superior Court in two respects. By § 1, it has authorized them, "in any case where the trial is by the court without a jury, after the finding upon the facts," to report questions of law arising at the trial for the determination of this court "in like manner as if a verdict had been rendered." By § 2, it has repealed the St. of 1869, c. 438, and thus taken away the power of the...