Bacon v. George

216 Mass. 519 | Mass. | 1914

Rugg, C. J.

This case was before us in 206 Mass. 566. It there was decided that although technically the plaintiff as trustee in bankruptcy could not recover as the nominal party plaintiff, yet an opportunity ought to be given him to apply for an amendment, to enable him to prosecute the action as the only party beneficially interested and in the name of the original plaintiff. It further was said that if such an “amendment be allowed, then such proceedings thereafter shall be had either by way of a judgment upon the verdict, or of a new trial, or otherwise, as to that [the Superior] Court shall seem just and proper.” That decision was right. No argument has been addressed to us which leads us to doubt its soundness. It became the law of the case. Boyd v. Taylor, 207 Mass. 335. A motion for an amendment as indicated in the earlier opinion was allowed in the Superior Court. Plainly there was no error in this regard. It conformed to the rescript and the opinion. Whether it did or not is the only question now open in this respect. Attorney General v. New York, New Haven, & Hartford Railroad, 201 Mass. 370.

W. C. Cogswell, for the defendant, submitted a brief. M. S. Holbrook, for the plaintiff.

No order then was made whether thete should be a new trial or not. None can be inferred where the record is blank touching the subject. Thereafter a motion was made by the plaintiff that judgment be entered on the verdict. This motion was granted. Whether it should have been granted or not rested in the sound judicial discretion of the court. Opposition to it on the part of the defendant was the equivalent of a motion for a new trial, which itself is a matter of sound discretion. Freeman v. Boston, 178 Mass. 403.

The defendant filed an affidavit setting out certain reasons why a new trial should be had. This is no part of the record and cannot be considered on appeal. Storer v. White, 7 Mass. 448. Warner v. Collins, 135 Mass. 26. The question presented to the Superior Court on the motion was in substance and effect whether justice required that the defendant should have another opportunity to try the facts, or whether that issue had been determined fairly, or whether there was in truth any fact to be tried, or whether for any reason there should be a new trial. The facts presented at the hearing on that motion are not disclosed in the record. Appeal brings up only errors of law apparent on the record. Hicks v. Graves, 194 Mass. 589. Mower v. Beard, 213 Mass. 198. It is impossible to say that any error has been committed. Lemay v. Springfield Street Railway, 211 Mass. 138.

The fact that the defendant offered no evidence at the earlier trial is not decisive. It falls far short of showing error.

Judgment affirmed.