McAlary v. First National Stores, Inc.

U.S. District Court

McAlary v. First National Stores, Inc.

1 Mass. App. Dec. 55

CourtUnited States District Court

DecidedJuly 14, 1941

DocketNo. 4042 & 4043

StatusPublished

This text of 1 Mass. App. Dec. 55 (McAlary v. First National Stores, Inc.) is published on Counsel Stack Legal Research, covering United States District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McAlary v. First National Stores, Inc., 1 Mass. App. Dec. 55 (usdistct 1941).

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Opinion

JONES, P. J.

(Wilson, & Henchey, JJ.)—These are defendant’s appeals. The actions are stated in the report as “actions of tort” to recover for personal injuries to the plaintiffs from eating spinach sold to them by the defendant and causing their sickness. No requests for rulings of law were filed by either party. The Court found for the plaintiff in each case, without indicating on which counts the findings were based. No requests for reports were filed.

Defendant filed motions for a new trial, which were denied by the Court. It does not appear in the report upon what .grounds the motions for a new trial were based. Therefore, as to these motions, even if any question of the rightfulness of their several dispositions were open to the defendant, they cannot now be questioned under the state of the respective records; the motions are not set forth; they were addressed only to the discretion of the Court, and it was within the power of the Court to over-rule them with no right in the defendant to have the Court's action in this respect reviewed. Brown v. Learmouth, 228 Mass. 417. Neither was there any right of appeal to this court. It is only when a party is aggrieved by a ruling on a matter of law that a party is entitled as of right to a report to the Appellate Division. Commercial Credit Corp. v. Flowers, 282 Mass. 316; Cobb v. Chickatawbut Club, 220 Mass. 146. Neither can we review findings of fact. Loanes v. Gast, 216 Mass. 197.

This Division is designed to review questions of law only shown on a report, and cannot be required to do otherwise. Cleary v. First National Stores, Inc., 291 Mass. 172. The filing [56]*56of the motion for a new trial added no legal ground for complaint on the part of the defendant. Bankoff v. Coleman Bros., Inc., 302 Mass. 122; G. L. Ter. Ed. c. 231, sec. 108.

The report is dismissed.

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JONES, P. J.

(Wilson, & Henchey, JJ.)—These are defendant’s appeals. The actions are stated in the report as “actions of tort” to recover for personal injuries to the plaintiffs from eating spinach sold to them by the defendant and causing their sickness. No requests for rulings of law were filed by either party. The Court found for the plaintiff in each case, without indicating on which counts the findings were based. No requests for reports were filed.

Defendant filed motions for a new trial, which were denied by the Court. It does not appear in the report upon what .grounds the motions for a new trial were based. Therefore, as to these motions, even if any question of the rightfulness of their several dispositions were open to the defendant, they cannot now be questioned under the state of the respective records; the motions are not set forth; they were addressed only to the discretion of the Court, and it was within the power of the Court to over-rule them with no right in the defendant to have the Court's action in this respect reviewed. Brown v. Learmouth, 228 Mass. 417. Neither was there any right of appeal to this court. It is only when a party is aggrieved by a ruling on a matter of law that a party is entitled as of right to a report to the Appellate Division. Commercial Credit Corp. v. Flowers, 282 Mass. 316; Cobb v. Chickatawbut Club, 220 Mass. 146. Neither can we review findings of fact. Loanes v. Gast, 216 Mass. 197.

This Division is designed to review questions of law only shown on a report, and cannot be required to do otherwise. Cleary v. First National Stores, Inc., 291 Mass. 172. The filing [56]*56of the motion for a new trial added no legal ground for complaint on the part of the defendant. Bankoff v. Coleman Bros., Inc., 302 Mass. 122; G. L. Ter. Ed. c. 231, sec. 108.

The report is dismissed.

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1 Mass. App. Dec. 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcalary-v-first-national-stores-inc-usdistct-1941.

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