338 Mass. 284 | Mass. | 1959
This is a petition for a writ of certiorari to quash the taking of land for a public playground on November 7, 1957, by the city council of Gloucester, a single legislative body of nine members created by G. L. c. 43, §§ 93-116, Plan E form of municipal charter. Six of the respondents filed a joint return. The respondents also filed a demurrer. The petitioners filed a motion to strike out the return as not signed by the full membership which was denied, and the petitioners saved an exception. After hearing the demurrer, the judge said: “With the consent of all the parties concerned I deferred my decision on the demurrer until after hearing evidence on the facts.” The petitioners had contended that the taking was illegal because an appropriation had not been made prior to the taking. The judge found that an appropriation had been made prior to the vote taking the property and stated that he had made this finding to avoid a new trial in case he was wrong in sustaining the demurrer. In so far as appears from the record the sole contention made by the petitioners is that the taking was invalid because an appropriation was not made prior to the taking. The petitioners appealed from the order sustaining the demurrer.
The merits of this case were considered with the consent of all parties and the petitioners must be held to have waived any deficiency in the return because it was only signed by less than the whole membership of the city council, Byfield v. Newton, 247 Mass. 46, 53, City Council of Salem v. Eastern Mass. St. Ry. 254 Mass. 42, 44; and the same applies to their exception taken to the denial of their motion to strike out the return of the respondents. They could hardly consent to proceeding to a hearing on the merits and in the event of an adverse finding claim an exception to a failure to grant the motion. Klefbeck v. Dous, 302 Mass. 383, 387. Sanborn v. Brunette, 315 Mass. 231, 237. Even if we assume
Exceptions overruled.
Order sustaining demurrer affirmed.