Martin Edward, Inc. v. District Court

148 N.E.2d 181, 337 Mass. 767, 1958 Mass. LEXIS 789

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1958
• Status: Published

Opinion

Order sustaining demurrer affirmed. Judgment affirmed. This is a petition for a writ of mandamus filed in the Supreme Judicial Court for the County of Suffolk. A demurrer to the petition on the ground that there was a plain and adequate remedy at law was sustained, and judgment was entered dismissing the petition. The petitioner appealed. The petition alleges that an action was brought in the District Court of Somerville against a fire insurance company; that an answer in abatement was heard and sustained; that such action was improper because the fire insurance company had been previously defaulted; and that judgment should have been entered for the petitioner. The prayers, in so far as we understand them, seem to be to require the District Court to comply with the requirements of law, and to issue execution and, in the alternative, to make findings so that proper review may be had in the Appellate Division. There was no error. This proceeding cannot be used as a substitute for ordinary appellate procedure. Rines v. Justices of the Superior Court, 330 Mass. 368, 371-372. Another aspect of this controversy was before us in Martin Edward, Inc. v. Appellate Division for the Northern District, 336 Mass. 52.

Angus M. MacNeil, for the petitioner. Edward F. Mahony, Assistant Attorney General, for the respondent.