Director General of Railroads v. Aloisi

176 N.E. 188, 275 Mass. 453, 1931 Mass. LEXIS 1405

Opinion

Sanderson, J.

This is an action of contract to recover freight charges on a carload of produce originating in California in September, 1919, and consigned to the defendant. The writ was dated July 13, 1923, and the trial in the Superior Court resulted in a verdict for the plaintiff by direction of the trial judge. Thereafter the defendant’s motion for a new trial was allowed. The defendant’s answer was amended by setting up the defence that the cause of action did not accrue within three years before the suing out of the writ and the further defence that it did not accrue within six years before the plaintiff became a party to the action. After trial the judge found for the plaintiff and assessed damages in a stated sum. Thereafter the defendant filed a motion in arrest of judgment on the ground that “the record manifestly shows that this action originally brought by the Erie Railroad Company was brought more than three years after the time the said cause of action accrued and that the substitution of the present plaintiff by way of amendment does not give the plaintiff any standing in court in that the cause begun by the original plaintiff was prohibited, and brought into court contrary to the provisions of the 41. U. S. Sts. at Large, 491, § 424, and that the cause of action forming the subject matter of this case was specifically reserved by the act of March 21, 1918, 40 U. S. Sts. at Large, 456, § 10, and not to the present plaintiff.”

The only contention made by the defendant is that the action is barred by the statute of limitations as contained in the statutes of the United States to which reference is made in the motion. This ground of defence existed before the finding was made and does not affect the jurisdiction of the court. By the express terms of the statute this defence is not open on a motion in arrest of judgment. G. L. c. 231, § 136.

Order dismissing motion in arrest of judgment affirmed.