National Machine & Tool Co. v. Standard Shoe Machinery Co.

70 N.E. 1038, 186 Mass. 44, 1904 Mass. LEXIS 886

Opinion

Hammond, J.

1. The motion to recommit the report to the assessor was addressed to -the discretion of the judge and his decision thereon is not subject to exception or appeal. If the defendant desired the findings of the assessor to be reviewed by the Superior Court, he should have taken specific objections to them and have requested a report of so much of the evidence as bore upon the points covered by the exceptions. If this had been done, these questions could have been brought to this court. Carew v. Stubbs, 161 Mass. 294, and cases cited.

2. It does not appear that there was any error in law in overruling the motion for a new trial. The question of liability had been determined already against the defendant (181 Mass. 275) and it was not open to it to raise that question either at the hearing before the assessor or, by a request for a ruling by the court, on a motion for a new trial. Paddock v. Commercial Ins. Co. 104 Mass. 521.

3. The court had the power to order judgment upon the report of the assessor, and no error in law appears. Carew v. Stubbs, ubi supra, and cases cited.

The result is that the exceptions are overruled and the order for judgment from which the defendant appealed is affirmed.

So ordered.