Fitzgerald v. Fitzgerald

165 Mass. 471 | Mass. | 1896

Knowlton, J.

This is a bill of exceptions taken in the course of a trial of issues of fact by a jury in a suit in equity in the Superior Court. Although considerably more than a year has elapsed since the exceptions were taken, the record before us does not show that there have been any other proceedings in the case since the jury returned their verdict. The first question to be considered is whether the exceptions should be heard in this court before a final hearing on the merits, both upon the law and the facts. It is a general rule that questions of law arising in the Superior Court cannot be heard in this court until the case has proceeded so far that the determination of these questions against the excepting party will settle the controversy involved in the suit. Boyce v. Wheeler, 133 Mass. 554, and cases cited. Lowd v. Brigham, 154 Mass. 107. See also Slater v. Manchester, 160 Mass. 471. A branch of the general subject closely analogous to the question before us was considered at length in Fuller v. Chapin, ante, 1, in which it was decided that the court will not ordinarily hear an appeal in equity from an order refusing to frame issues of fact for a jury until after a final decree in the case. It may and often does happen that subsequent proceedings render a bill of exceptions taken in reference to an interlocutory matter wholly immaterial. The present case furnishes a good illustration of the fact. Without intimating that the questions presented by the bill of exceptions would present serious difficulties in any aspect of the case, it is apparent that upon the allegations of the bill and answer, and the findings of the jury upon other issues in relation to which no exceptions were taken, a decree for the defendant might be entered on grounds which would render these exceptions immaterial. It seems likely that, when the case proceeds to a final hearing, it will be so disposed of, and it would be irregular to consider and determine the questions of law arising upon the exceptions at the present time.

Bill of exceptions dismissed as prematurely entered.