Weil v. Boston Elevated Ry. Co.

• Decision Date: 26 February 1914
• Citation: 216 Mass. 545,104 N.E. 343
• Parties: WEIL v. BOSTON ELEVATED RY. CO. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

216 Mass. 545

104 N.E. 343

WEIL v. BOSTON ELEVATED RY. CO. (two cases).

Supreme Judicial Court of Massachusetts, Norfolk.

February 26, 1914

COUNSEL

Brandeis, Dunbar & Nutter, of Boston (Edward F. McClennen and Jacob J. Kaplan, both of Boston, of counsel), for plaintiff.

W. G Thompson and Geo. E. Mears, both of Boston, for defendant.

OPINION

RUGG C.J.

These actions were tried before the chief justice of the superior court and resulted in verdicts for the defendant. Thereafter the plaintiff made a motion that the verdicts be set aside and new trials granted, by reason of certain specified errors of law in the charge. These motions were granted. The result is that, so far as the record of the superior court goes, in each case there has been a trial to a jury and a verdict rendered, and that verdict has been set aside. No further trial or proceedings have been had. The parties have argued at length several questions of law raised at the trial, and the further question whether the court had power to set aside the verdicts under the circumstances here disclosed.

The preliminary question is whether these exceptions are entered prematurely. It has been decided repeatedly that 'this court has no jurisdiction on appeal from the superior court under the statutes until after a final judgment disposing of the whole case in the court below.' Gray, C.J., in Riley v. Farnsworth, 116 Mass. 223. To the same effect see Bennett v. Clemence, 3 Allen, 431; Kellogg v. Kimball, 122 Mass. 163; Elliot v Elliot, 133 Mass. 555; Boyce v. Wheeler, 133 Mass. 554; Fuller v. Chapin, 165 Mass. 1, 3, 42 N.E 115. See also Hogan v. Ward, 117 Mass. 67; Cook v. Horton, 129 Mass. 527; Ellis v. Atlantic & Pacific R. R., 134 Mass. 338, 340. Although these cases were decided and the language quoted used when Gen. St. c. 114, § 10, was in force, the amendments to that act embodied in R. L. c. 173, § 96, as amended by St. 1906, c. 342, § 2, and St. 1910, c. 555, § 4, have made no difference in the law in this respect, because it has been said in recent cases that this court has no jurisdiction to hear an appeal until after final judgment. Cotter v. Nathan & Hurst Co., 211 Mass. 31, 97 N.E. 144; Oliver Ditson Co. v. Testa, 213 Mass. 109, 99 N.E. 949; Cressey v. Cressey, 213 Mass. 191, 99 N.E. 972. See also Brennan v. McInnis, 172 Mass. 247, 51 N.E. 974; In re O'Connell, 174 Mass. 253, 262, 53 N.E. 1001, 54 N.E. 558. This jurisdictional rule depends upon the statute, as is pointed out in several of these cases.

The rule as to exceptions has been stated many times, in substance that they cannot be entered and heard in this court until the case has been finally disposed of or is ripe for judgment in the court below. Com. v. Sallen, 11 Gray, 52; Bursley v. Barnstable, 14 Gray, 106; Marshall v. Merritt, 13 Allen, 274; Com. v Gloucester, 110 Mass. 491; Safford v. Knight, 117 Mass. 281, 283; National Bank of Clinton v. Taylor, 117 Mass. 283, note; Gifford v. Rockett, 119 Mass. 71; Harding v. Pratt, 119 Mass. 188; Crompton Carpet Co. v. Worcester, 119 Mass. 375; Com. v. Foster, 122 Mass. 317, 322, 23 Am. Rep. 326; Platt v. Justices of the Superior Court, 124 Mass. 353, 355; Comins v. Turners Falls Co., 140 Mass. 146, 3 N.E. 304; Fitzgerald v. Fitzgerald, 165 Mass. 471, 43 N.E. 191; Crossin v. Beebe, 186 Mass. 472, 72 N.E. 65; Brooks v. Shaw, 197 Mass. 376, 84 N.E. 110. This, however, is a rule of practice established by the court and not a jurisdictional rule arising out of the statute. It is a rule of practice established in the interests of justice. It would be an unendurable burden upon parties litigant if exceptions touching interlocutory matters could be brought to this court and its determination required as they arose in the progress of the case from time to time, before the issues of substance were finally disposed of in the trial court. It is obvious that many questions of law raised as to interlocutory matters may become of no consequence when the case is ready for final judgment in the trial court. Any other rule would require this court to spend much of its time in the consideration of questions which would become finally moot and immaterial. Therefore, in the interests of practical and speedy administration of justice, the rule of practice has been adopted that exceptions will be treated as prematurely entered unless the case has been so far disposed of in the trial court as to appeal upon the record to be ripe for final judgment. This subject is fully discussed and made plain by the luminous opinion of Field, C.J., in Lowd v. Brigham, 154 Mass. 107, at page 111, 26 N.E. 1004, at page 1005, where in conclusion it is said: 'There is certainly nothing in existing statutes indicating that exceptions may not always be entered in the full court as soon as may be after they are allowed, but the general practice has become settled not to allow exceptions to be entered and heard until the case is, according to the regular course of procedure, ripe for final judgment in the court where it is pending.' This being a rule of practice established in the interests of justice, if in any instance it should not be raised by the parties or overlooked by the court, the jurisdiction of the court is not affected and any decision made would be binding. It was held in Lowd v. Brigham, 154 Mass. 107, 26 N.E. 1004, that the procedure in a petition for partition was of such a peculiar nature that the judgment for partition was a separate judgment from that rendered on the report of commissioners, and that, as it was hardly conceivable that any proceedings taken after such a judgment would render immaterial exceptions taken upon the hearing whether partition should be made, such exceptions would be entertained in the discretion of the court. This is not a modification of the general rule, but an interpretation that in petitions for partition, the decision that there shall be a partition is in the nature of a final judgment and therefore a proper stage for the entertainment of exceptions. To the same point see Joyce v. Dyer, 189 Mass. 64, 75 N.E. 81, 109 Am. St. Rep. 603; Cressey v. Cressey, 213 Mass. 191, 99 N.E. 972. In Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108, 98 N.E. 696, it was held that the case was ripe for final judgment and therefore the exceptions were entertained. See also Hutchins v. Nickerson, 212 Mass. 118, 98 N.E. 791. The defendant points to several cases where this court has considered exceptions coming before it in substantially the same way as the present bill. Greene v. Farlow, 138 Mass. 146; Harrington v. Worcester, L. & S. St. Ry., 157 Mass. 579, 32 N.E. 955; Ellis v. Ginsberg, 163 Mass. 143, 39 N.E. 800; Manning v. Rand, 187 Mass. 496, 73 N.E. 645; Pierson v. Boston Elevated Railway, 191 Mass. 223, 77 N.E. 769; Loveland v. Rand, 200 Mass. 142, 85 N.E. 948; Welch v. Milton Water Co., 200 Mass. 409, 86 N.E. 779; Simmons v. Fish, 210 Mass. 563, 97 N.E. 102, Ann. Cas. 1912D, 588. In Shannahan v. Boston & Northern St. Ry., 193 Mass. 412, 79 N.E. 751; and Hill v. Greenwood, 160 Mass. 256, 35 N.E. 668, relied on by the defendant, the cases were ripe for final judgment in the superior court. It is true that in...