135 Mass. 189 | Mass. | 1883
This is a writ of error. The error assigned by the plaintiffs is, that in the original action the plaintiff therein discontinued against Sanger, one of the defendants, and took judgment against the other defendants therein, who are the plaintiffs in error.
The action was tried before a justice of the Superior Court without a jury, who found for the plaintiff, and ordered judgment for him against all the defendants, who were then defendants
Although a plaintiff may not, as matter of law, have the right to discontinue against any or all of the defendants, after he has opened his case for trial before a jury, or a court without a jury, it is clear that he may be permitted to do so by leave of court at any time before final judgment is entered. Pub. Sts. c. 167, § 42. Whether such leave shall be granted is a question within the discretion of the court, and the exercise of this discretion is not subject to revision by this court, upon a writ of error, or otherwise. Haskell v. Whitney, 12 Mass. 47. Locke v. Wood, 16 Mass. 317.
When questions of law are brought to this court from the Superior Court by report, exceptions, or appeal, the case remains in the Superior Court. The rescript from this court, though in the form of “ judgment affirmed,” does not operate as a judgment, or as an absolute order for judgment; the final judgment must be rendered by the Superior Court, and, until such final judgment is entered, that court has the power, within its discretion, to permit the plaintiff to discontinue against any or all of the defendants. Terry v. Brightman, 133 Mass. 536, and cases cited.
Judgment affirmed.