200 Mass. 563 | Mass. | 1909
This is an action of replevin, brought in the Police Court of the City of Brockton, to recover one Boston
The contention of the defendant, as stated by himself in his brief, is “ that the question of title to the Boston terrier bitch and three pups was not before the Superior Court and that the order of the judge
The record of .each court is peculiar, especially that of the police court. Before the lower court the question was whether the plaintiff could maintain his action as to the five dogs which had been taken on the writ. If he maintained his action as to all, then he was entitled to judgment as to all; if only as to a part of them then judgment as to that part. In the latter event there were two judgments to be rendered, one for the plaintiff as to the dogs he owned, and one for the defendant as to the rest of them. In such a case, although all the articles are de
But the judgment contained no express determination as to the dogs not given to the defendant; and in that respect was imperfect. The plaintiff therefore may well have appealed from the judgment upon the ground not only that one of the dogs was given to the defendant, but upon the further ground that none was given to the plaintiff; or, in other words, that the court had failed to enter a judgment in proper form. Such an appeal from such a judgment would carry the whole case to the Superior Court, and we are of opinion that under the peculiar circumstances it must be held that the appeal of the plaintiff carried the whole of this case to the Superior Court.
In that court, as before stated, the plaintiff claimed a trial by jury, but the only question submitted to them seems to have been the one above described, namely, whether “the pup in question ” belonged to the plaintiff. We cannot look beyond the record, but we must interpret it as best we can. The order of the court is entitled a “ finding,” and is consistent with the theory that upon the answer of the jury the parties were content to submit all other questions to the judge rather than to the jury, and that upon such submission the judge either upon evidence or statements of the parties found that the four dogs other than the one whose ownership was passed upon by the jury were the property of the plaintiff, and having so found ordered judgment for the plaintiff on such finding and for the defendant on the finding of the jury. This construction of the record seems to be the most consistent. The record as it stands must govern the rights of the parties on this appeal, and we are bound by it.
Judgment affirmed.
The case was submitted on briefs.
King, J.