Weld v. Clarke
| Decision Date | 18 June 1913 |
| Citation | 102 N.E. 422,215 Mass. 324 |
| Parties | WELD v. CLARKE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
J. C Batchelder, of Lynn, for appellant.
Joseph Bennett, of Boston, for appellee.
This is an appeal from an order of the superior court allowing a motion to change the issues framed in the land court for a trial by jury in the superior court. The order was interlocutory in its nature and could not be brought to this court by appeal until final judgment. Cotter v. Nathan & Hurst Co., 211 Mass. 31, 97 N.E. 144. A case in the land court which goes to the superior court on appeal for a jury trial presents a peculiar procedure. St. 1904, c. 448, § 8 which governs the practice in this case (see, also, St. 1910, c. 560, §§ 6 and 8), provides that 'questions of law arising in the superior court on such appeal may be taken by any party aggrieved by any opinion, ruling, direction or judgment of the court to the Supreme Judicial Court for revision, in the same manner as in proceedings at law in said superior court.' There can be no judgment in a proceeding begun in the land court, which shall be final in the sense that it disposes of all the issues raised, except in the land court. Under the practice as now established by the statutes a jury in the superior court is the forum where alone jury trials may be had by appeal in cases pending in the land court. The superior court has no jurisdiction of such cases except for the ascertainment of facts by jury trial. The word 'judgment,' however, in the statute authorizing the transfer of questions of law raised in such a trial in the superior court directly to this court for determination, must contemplate an appeal from an interlocutory judgment among the matters which may be brought directly to this court. No question of law, however, can be brought here from the superior court until all other proceedings in that court have come to an end. To that extent the rule of Cotter v. Nathan & Hurst Co. applies. In the case at bar proceedings had come to a conclusion in the superior court and certificate had been sent by the clerk of the superior court to the land court under R. L. c. 128, § 14. Hence the case is properly before us.
This is a writ of entry. One of the issues allowed in the land court related to the amount of rents and profits for which the tenant was liable. R. L. c. 179, § 21, provides that in writs of entry the...
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