Taylor v. City of Taunton

Massachusetts Supreme Judicial Court

Taylor v. City of Taunton

113 Mass. 290

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1873

StatusPublished

Cited by1 cases

This text of 113 Mass. 290 (Taylor v. City of Taunton) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Taylor v. City of Taunton, 113 Mass. 290 (Mass. 1873).

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Opinion

Gray, C. J.

The questions proposed to be argued in this case have not been rightly brought before us, and we have therefore no jurisdiction of them.

The petitioner relies on the Gen. Sts. c. 115, § 6, by which the Superior Court “ may, at any time before judgment in a civil action, set aside the verdict and order a new trial, for any cause for which a new trial may by law be granted, or after verdict may report the case for determination by the Supreme Judicial Court.” But that section applies only to cases in which a trial is had and a verdict rendered at the bar of the court; and does not extend to cases like the present, in which the trial is had before a sheriff’s [291]*291jury, and their verdict is returned by the sheriff to the Superior Court, as to which it is elsewhere enacted that “ the court shall receive it, and adjudicate thereon, and may set it aside for good cause.’' Gen. Sts. c. 26, §§ 56, 58; c. 43, § 40.

The judge who presided at the trial in the Superior Court, instead of himself performing the duty thus imposed upon him, has undertaken to transfer that duty to this court. This he has no authority to do. The questions presented by the various motions in the case involve matters of fact and discretion, as well as matters of law. The former must be determined finally by him, and cannot be brought to this court at all; the latter can only, after being decided by him in the first instance, be brought here by exceptions, or, so far as they appear on the face of the record, by appeal. Walker v. Boston & Maine Railroad, 3 Cush. 1. Gen. Sts. c. 115, § 7; c. 114, § 10.

It is suggested, in behalf of the petitioner, that we may treat this report as a bill of exceptions, and so retain jurisdiction of the questions stated in it. The learned judge has not allowed it as such, but has stated the exceptions as parts of his report, as would have been the proper course if the case had been one which he was authorized to send up by report. Aldrich v. Boston Worcester Railroad Co. 100 Mass. 31. And if the exceptions had been formally allowed, they could not be entered in this court before the verdict had been accepted or set aside in the court below. Marshall v. Merritt, 13 Allen, 274.

Report dismissed.

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Gray, C. J.

The questions proposed to be argued in this case have not been rightly brought before us, and we have therefore no jurisdiction of them.

The petitioner relies on the Gen. Sts. c. 115, § 6, by which the Superior Court “ may, at any time before judgment in a civil action, set aside the verdict and order a new trial, for any cause for which a new trial may by law be granted, or after verdict may report the case for determination by the Supreme Judicial Court.” But that section applies only to cases in which a trial is had and a verdict rendered at the bar of the court; and does not extend to cases like the present, in which the trial is had before a sheriff’s [291]*291jury, and their verdict is returned by the sheriff to the Superior Court, as to which it is elsewhere enacted that “ the court shall receive it, and adjudicate thereon, and may set it aside for good cause.’' Gen. Sts. c. 26, §§ 56, 58; c. 43, § 40.

The judge who presided at the trial in the Superior Court, instead of himself performing the duty thus imposed upon him, has undertaken to transfer that duty to this court. This he has no authority to do. The questions presented by the various motions in the case involve matters of fact and discretion, as well as matters of law. The former must be determined finally by him, and cannot be brought to this court at all; the latter can only, after being decided by him in the first instance, be brought here by exceptions, or, so far as they appear on the face of the record, by appeal. Walker v. Boston & Maine Railroad, 3 Cush. 1. Gen. Sts. c. 115, § 7; c. 114, § 10.

It is suggested, in behalf of the petitioner, that we may treat this report as a bill of exceptions, and so retain jurisdiction of the questions stated in it. The learned judge has not allowed it as such, but has stated the exceptions as parts of his report, as would have been the proper course if the case had been one which he was authorized to send up by report. Aldrich v. Boston Worcester Railroad Co. 100 Mass. 31. And if the exceptions had been formally allowed, they could not be entered in this court before the verdict had been accepted or set aside in the court below. Marshall v. Merritt, 13 Allen, 274.

Report dismissed.

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