Whitney v. Hunt-spiller Mfg. Corp.

• Citation: 218 Mass. 318,105 N.E. 1054
• Parties: WHITNEY v. HUNT-SPILLER MFG. CORPORATION.
• Decision Date: 17 June 1914
• Court: United States State Supreme Judicial Court of Massachusetts

218 Mass. 318

105 N.E. 1054

WHITNEY v. HUNT-SPILLER MFG. CORPORATION.

Supreme Judicial Court of Massachusetts, Suffolk.

June 17, 1914

COUNSEL

Francis R. Mullin, of Boston, and Paul F. Spain, of Cambridge, for plaintiff.

John Lowell and James A. Lowell, both of Boston, for defendant.

OPINION

RUGG C.J.

The only question presented by this record is whether a judge of the superior court has power to extend the time within which a motion to set aside a verdict and to grant a new trial may be filed, when no such motion has been filed within three days after the return of the verdict. Rule 41 of the Superior Court Common-Law Rules of 1906 provides that:

'No motion for a new trial shall be sustained in a civil action after verdict [in enumerated cases] unless within three days after the verdict is returned' a motion therefor is filed. 'For cause the time for filing such motion may be extended by the court.'

This question must be answered in the affirmative on the authority of Dolan v. Boott Cotton Mills, 185 Mass. 576, 70 N.E. 1025. That case decided that the common-law rule 18 of the superior court, as it then was (now 16), which provided that 'the notice that a party desires a trial by jury shall be filed not later than ten days after the time allowed for filing the answer * * * unless the court by special order shall extend the time,' meant that the court had discretionary power to make an order permitting a trial by jury after the expiration of the ten days even though no application for it had been filed within that time. The words of these two rules are almost identical; the decisive one, 'extend,' being the same. As pointed out in Dolan v. Boott Cotton Mills, the word 'extend,' in similar rules or statutes, has been interpreted not to imply the existence of an unexpired portion of the period. Cleverly v. O'Connell, 156 Mass. 88, 30 N.E. 88; Haynes v. Saunders, 11 Cush. 537. The present rule is dealing with the exercise of a right inherent in the trial by jury secured under the Constitution. Opinion of Justices, 207 Mass. 606, 94 N.E 846. It hardly is to be expected that the court would deprive itself absolutely of the power to set aside a verdict which its sound judicial discretion should pronounce so unjust that it ought not to be permitted to stand. The reason why 'extend' should be given a meaning sufficiently broad to permit the exercise of the power after the expiration of the...