220 Mass. 333 | Mass. | 1915
This is an action of tort wherein the plaintiff alleges that the defendants, through a conspiracy, defrauded him out of large sums of money. Upon motion of the defendants
It has been said many times that the power to order particulars or specifications rests in the discretion of the trial court. Gardner v. Gardner, 2 Gray, 434. Blake v. Everett, 1 Allen, 248, 251. Commonwealth v. Wood, 4 Gray, 11,13. Harrington v. Harrington, 107 Mass. 329, 334. Hines v. Stanley G. I. Electric Manuf. Co. 199 Mass. 522,527. Commonwealth v. King, 202 Mass. 379, 384. It is
There is nothing in the case at bar to indicate that the Superior Court was not acting well within its powers. It would be enough to dispose of the case to say that the finding, that the specifications filed were not a compliance with the order, was based in part upon statements of counsel apparently made and accepted as facts, which are not set out in the exceptions. A finding of fact grounded on unreported evidence must stand. Bailey v. Harden, 193 Mass. 277.
But, apart from this consideration, no error is shown. It appears that the plaintiff had examined several of these defendants in a hearing touching matters kindred to those involved in the present action. He was in a position to know what the facts were upon which an action for conspiracy could rest if they existed at all. His failure under these circumstances to be definite in the statement of his cause of action in pleadings stood upon a somewhat different ground than it would if he were wholly in the dark as to the subject.
It is not necessary to decide whether the allegations of the declaration as amplified by the bill of particulars filed would have been demurrable. They were in the most general terms and were vague and indefinite as to facts. They failed to furnish much information as to salient features of participation by these three defendants in a conspiracy to defraud. The defendants would be largely unenlightened as to the kind of evidence they must be prepared to meet. It was well within the power of the trial court
When the plaintiff declined to comply with the direction of the court, and stated that he did not desire further time, it was the duty of the court to proceed further. If the court does not possess the power to enforce its just order of this nature, it would be impotent in the face of a recalcitrant party. The making of an order without authority to enforce it would be a vain ceremony. The entry of a nonsuit is the appropriate means of dealing with a refusal to comply with such an order as this. Babcock v. Thompson, 3 Pick. 446, 449. Stern v. Filene, 14 Allen, 9. Harding v. Morrill, 136 Mass. 291. Fels v. Raymond, 139 Mass. 98. It was in accordance with Rule 6 of the Superior Court. See R. L. c. 173, § 68.
The proper way to bring before this court the questions here sought to be reviewed was by exceptions and not by appeal.
Appeal dismissed.
Exceptions overruled.
Jenney, J.