217 Mass. 502 | Mass. | 1914
This is a writ of entry. The tenant appealed from an adverse decision by the Land Court to the Superior Court for a trial by jury. The title depends upon who were the heirs at •law of one Frederick Merrick. Several issues were framed, only two of which now are important. The first was, “What relation, if any, did the demandants, and each and all of them, bear to the testator, Frederick Merrick?” The second was, “Did said Frederick Merrick at the time of his decease leave any issue? If so, who were they?” The jury answered these two questions, and the case came here upon the tenant’s exceptions. 214 Mass. 223. These exceptions were sustained by a general rescript which contained no further directions as to the course to be taken at the new trial. In the opinion, this court, in discussing the questions of law raised, held that error was committed only respecting the first issue.
Plainly it would have been within the power of this court to have restricted the new trial to the single issue as to which a mistake of law had been committed, provided it had decided that the real interests of the parties required such a course. Simmons v. Fish, 210 Mass. 563. Burke v. Hodge, 211 Mass. 156. But no such restrictive order was made in the rescript. The entry simply was “Exceptions sustained.” This means as matter of practice that there shall be a wholly new trial upon all the issues open on
Accordingly, it was error for the judge of the Superior Court
Exceptions sustained.
Jenney, J.