Hall Publishing Co. v. MacLaughlin

230 Mass. 534

Opinion

Rugg, C. J.

This action at law was commenced in the Municipal Court of the City of Boston. When it came on for trial the judge refused to grant two requests presented by the plaintiff for rulings of law, and found for the defendant. The case was taken to the Appellate Division, which granted leave to the plaintiff to amend its declaration within ten days, otherwise the report was to be dismissed. The defendant claimed an appeal before the expiration of ten days.

The defendant was not aggrieved by so much of the order of the Appellate Division as directed that the report be dismissed if the plaintiff did not avail itself of the privilege granted it to amend the declaration. If the plaintiff does not so amend, then final judgment will be entered in favor of the defendant. Manifestly he could not appeal from a decision in his favor. Although St. 1912, c. 649, § 9, does not expressly confine the right to appeal to this court to parties aggrieved by the decision of the Appellate Division, such limitation is a necessary implication. It is contrary ‘to fundamental principles of the administration of justice that the prevailing party may continue litigation when his opponent abides by an adverse decision.

Therefore, this in substance is an appeal from a decision per mitting a plaintiff to amend the declaration. Ample power is conferred upon courts to grant leave to amend pleadings. Orders allowing such amendments ordinarily rest in sound, judicial discretion and are not subject to review. Lowrie v. Castle, 225 Mass. 37, 39. Clark v. New England Telephone & Telegraph Co. 229 Mass. 1, 6.

Moreover, this was not in any aspect a “final decision” of the Appellate Division, from which alone appeal lies. Real Property Co. Inc. v. Pitt, ante, 526.

Without intimating- whether the ruling was right or wrong, the entry must be

Appeal dismissed.