City of Boston v. Robbins

116 Mass. 313, 1874 Mass. LEXIS 96

Opinion

Gray, C. J.

A petition for a review j like a motion for a new trial, is addressed to the discretion of the presiding judge. His rulings upon specific points of law raised at the hearing upon the petition, such as the power to allow an amendment, or the competency of evidence, may be revised on exceptions. Davenport v. Holland, 2 Cush. 1. Gray v. Moore, 7 Gray, 215. Richardson v. Lloyd, 99 Mass. 475. But if upon a petition in due form, and competent evidence, the judge is of opinion that the petitioner has a substantia] defence to the action upon the merits, which by accident and mistake, and without fault on his part, he has had no opportunity of presenting to the court and jury, it is within the discretion of the judge to grant a review, without passing in advance upon the questions of law or fact which may be involved in the trial of the case; and to the exercise of his discretion in this respect no exception lies. Brewer v. Holmes, 1 Met. 288, 291. Hutchinson v. Gurley, 8 Allen, 23.

Exceptions overruled.