Garrity v. Higgins

58 N.E. 1010, 177 Mass. 414, 1901 Mass. LEXIS 662

• Court: Massachusetts Supreme Judicial Court
• Decided: January 3, 1901
• Status: Published

Opinion

Lathrop, J.

It appears by the bill of exceptions that full instructions were given to the jury, and that no exceptions were taken except as is hereinafter stated ; and that at the close of the charge and after the jury had retired, the defendant’s counsel asked for a certain ruling, which the court refused to give, calling the attention of the counsel to the fact that the request was not made before the arguments, and before the jury had retired. It is plain that the defendant has no ground of exception to the refusal to give the ruling requested. Mooar v. Harvey, 125 Mass. 574, per Gray, C. J. Phillips's case, 132 Mass. 233. The question presented by the request is not open for our consideration. The exception in Jackson v. Knowlton, 173 Mass. 94, was saved before the jury retired, and the question had been called to the attention of the judge by counsel during the argument.

The questions of law raised on the motion for a new trial could all have been raised at the trial of the case, and furnish no ground of exception. Whittaker v. West Boylston, 97 Mass. 273. Lowell Gas Light Co. v. Bean, 1 Allen, 274. Commonwealth v. Morrison, 134 Mass. 189. Capron v. Anness, 136 Mass. 271. Holdsworth v. Tucker, 147 Mass. 572. Parker v. Griffith, 172 Mass. 87.

In Pox v. Chelsea, 171 Mass. 297, the motion for a new trial was on the ground that the verdicts for the plaintiffs were against law and evidence, and the weight of evidence. This appears from the bill of exceptions, though not from the report of the case. This motion was overruled by the court below, and it was said in this court: “ The order overruling the motion for a new trial was within the discretion of the court, and was not a subject for an exception.”

Exceptions overruled. .