216 Mass. 123 | Mass. | 1913
This action was brought in the Municipal Court of the city of Boston, where the defendant appeared specially and
It must be regarded as settled that under the circumstances here disclosed this order of the Superior Court was a judgment within the meaning of R. L. c. 173, § 96, as amended by St. 1906, c. 342, § 2, St. 1910, c. 555, § 4, so that, on an appeal (taken properly and entered after the case is ripe for final judgment), questions of law appearing on the record are rightly before this court, and that the sole remedy is not by exception. Maley v. Moshier, 160 Mass. 415. Commonwealth v.Dunleay, 157 Mass. 386. Commonwealths.McCormack, 126 Mass. 258. Sprague v. Auffmordt, 183 Mass. 7. The precise course of practice here disclosed appears to have been followed in Kimball s. Sweet, 168 Mass. 105. The language in Cummings v. Ayer, 188 Mass. 292, at p. 293, simply means that the right to enter an appeal in this court is in abeyance until a final judgment, and not that the right to claim the appeal is suspended.
If the plaintiff’s motion, filed on January 6, 19Í2, that “ the defendant’s plea in abatement be disallowed,” be treated as a motion that the plea be adjudged insufficient as matter of law, it could not have been granted. The plea not having been demurred to was sufficient at that stage to raise the issue of fact stated in it. If the motion was intended to be the basis for evidence outside the record, it came within the provisions of Rule 29 of the Superior
Judgment reversed.
This order was made by Pierce, J. The defendant appealed, still appearing specially for that purpose.