Boyce v. Wheeler

133 Mass. 554, 1882 Mass. LEXIS 287

• Court: Massachusetts Supreme Judicial Court
• Decided: November 25, 1882
• Status: Published

Opinion

Morton, C. J.

The rule of law is well settled that, in cases pending in the Superior Court, questions of law arising therein cannot be entered and heard in this court, upon appeal or exceptions, until after final judgment in the Superior Court. Until such final judgment, this court has no jurisdiction to hear and determine the questions of law. Platt v. Justices of the Superior Court, 124 Mass. 353. Kellogg v. Kimball, 122 Mass. 163. Gifford v. Rockett, 119 Mass. 71. Harding v. Pratt, 119 Mass. 188. Crompton Carpet Co. v. Worcester, 119 Mass. 375. Hogan v. Ward, 117 Mass. 67. Marshall v. Merritt, 13 Allen, 274.

This rule applies to the case at bar. It is a petition for partition, upon which judgment for partition was rendered at a former term, and commissioners to make partition were appointed. The commissioners made their report, and the Superior Court refused to confirm the report and to render judgment upon it, upon the ground that it was invalid in law. To this ruling of the court the respondents alleged exceptions. There has been no final judgment in the case, and it is not ripe for a final judgment. If this court were to hold that the ruling was wrong, no final judgment could be ordered or entered. The Superior Court might confirm the report and order judgment thereon, or it might for sufficient cause refuse to confirm it, and recommit the matter to the same or other commissioners. The decision of the court to which exception was taken was an interlocutory decision, and therefore the exceptions in this ease have been prematurely entered in this court.

C. P. Thompson, (J. F. Hannan with him,) for the respondents. S. B. Ives, Jr., for the petitioner.

Exceptions dismissed.