Burnham v. Haskell

100 N.E. 639, 213 Mass. 386, 1913 Mass. LEXIS 1006

Opinion

Bkaley, J.

The order entered at the calling of the docket was provisional, that if not tried at the next April sitting the case should be dismissed. It appears from the memorandum of decision, which is conclusive as to the facts, that although put on the trial list, yet when reached the case was postponed by the parties, and, not having been disposed of, it was placed on the trial list for the following November sitting. . When reached at this sitting after having been twice continued to a day certain by agreement of parties and with the approval of the court, the plaintiff recovered a verdict.

The defendant contends, that under the order of dismissal and Rule 23 of the Superior Court the case went to judgment on the first Monday of July, 1911. Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108. But the dismissal was not absolute, and with the approval of the court the parties treated the case as still pending from sitting to sitting. The order of dismissal consequently did not become automatically operative, and, as the presiding judge at the request of the plaintiff could order the case tried, no error of law is shown. Karrick v. Wetmore, 210 Mass. 578.

Exceptions overruled.