Wamesit Power Co. v. Lowell & Andover Railroad Co.

• Decision Date: 25 February 1881
• Citation: 130 Mass. 455
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Wamesit Power Company v. Lowell & Andover Railroad Company

130 Mass. 455

Wamesit Power Company v. Lowell & Andover Railroad Company

Supreme Court of Massachusetts

February 25, 1881

Middlesex. Petition to the county commissioners for a jury to assess damages for the taking of land for the construction of the respondent's railroad. The county commissioners, at the time of issuing their warrant for a jury, at the request of the parties, under the Gen. Sts. c. 43, § 32 appointed Benjamin F. Thomas, Esquire, as a suitable person to preside at the trial. The trial was concluded on December 18, 1876, and a verdict was duly rendered, which was returned to the next term of the Superior Court, namely, on March 26 1877, and was filed. At the same time, an agreement, signed by the counsel of the respective parties, was filed, that the case might stand continued nisi for a report of the presiding officer; and an entry to this effect was made on the docket. The case remained so continued from term to term until March term 1880, without further action, when the petitioner moved that the verdict be set aside, and further proceedings had as if there had been no trial.

At the hearing of this motion, before Pitman, J., it appeared that during the trial various rulings were made in relation to the admissibility of evidence, to which the petitioner duly excepted; that at the conclusion, and before the charge by the presiding officer, the petitioner prepared certain requests in writing, which were refused, and that certain rulings were made to which the petitioner objected, and that it duly excepted to the refusals to rule and to the rulings and requested that a report be made thereof to the court; and that the respondent duly saved certain exceptions, which it was understood were to be embraced in the report.

No certificate of the presiding officer containing the substance of any decision or direction by him given during the trial, and no certificate or memorandum of his in any way relating thereto, was on file or among the papers in court.

There was evidence that Mr. Thomas, who died on September 27, 1878, had made a report of his charge, and had given it to the sheriff of Middlesex county, who had died before this hearing. Among the papers left by Mr. Thomas were found and produced in court the petitioner's draft of exceptions, the respondent's exceptions, two copies of his own charge, the petitioner's prayers for instructions and the respondent's prayers for the same, but nothing else.

Much evidence was offered by each side as to the cause of the delay in the preparation of the report. It appeared that sometime in the fall of 1877 the parties had a hearing upon their respective drafts of the report, before Mr. Thomas, and it was then agreed that certain other evidence should be written out from the stenographer's minutes and furnished to Mr. Thomas.

The judge was not satisfied that this desired evidence ever was furnished, but did not consider this material, nor did he consider it material to decide as to the relative laches of the respective parties, because he was of opinion that pending the continuance of the agreement that the case should stand continued for...