124 Mass. 353 | Mass. | 1878
The order of the Superior Court that the statement of facts be discharged, and the case stand for trial, is not a final judgment, and cannot be brought to this court by bill of exceptions until the trial so ordered shall have been had, and the case finally disposed of in the court below. Safford v. Knight, 117 Mass. 281. National Bank of Clinton v. Taylor, 117 Mass. 283, note. Hogan v. Ward, 117 Mass. 67. These exceptions have therefore been prematurely entered in this court, and must be Dismissed.
The second case was an alternative writ of mandamus to compel judgment to be entered in the Superior Court in accordance with the rescript of this court, which that court, on motion made January 26, 1878, had declined to do, under the circumstances stated in the report of the first case, supra, and appearing by the allegations of the alternative writ and of the return thereto, which were admitted to be true, and upon which the application for a peremptory writ was heard by Soule, J., and refused. To this refusal the petitioner alleged exceptions.
D. E. Ware, for the petitioner.
This application is founded upon a misapprehension of the relation and powers of this court and the Superior Court, in cases in which questions of law are brought by exceptions or appeal from that court to this. In order to warrant the entry of the appeal or bill of exceptions in this court, the case must indeed be so far disposed of in the court below as to appear upon the record to be ripe for a final judgment on which execution may issue. But only the question of law reserved is brought to this court. The case and the record thereof remain in the court below, and, after this court has sent down a rescript disposing of the question of law reserved, the effective final judgment must be entered and the execution issued in that court. The decision of this court, as stated in its rescript, on the question of law reserved, is conclusive upon the Superior Court. But if it appears to the satisfaction of that court that, by mistake of parties or counsel, or misunderstanding of that court, a question of fact which is essential to the determination of the rights of the parties has not been tried, it is within the power and discretion of that court to suspend the entry of final judgment, and to set aside a verdict or discharge a statement of facts, in order to afford an opportunity of presenting that question to the court or jury. Gen. Sts. c. 112, §§ 11, 15; c. 114, §§ 10-12; c. 115, §§ 7, 12. Commonwealth v. Gloucester, 110 Mass. 491. Shannon v. Shannon, 10 Allen, 249. Bryan v. Bates, 12 Allen, 201, 205. Commonwealth v. Scott, 123 Mass. 418, 420.
The exercise of that judicial discretion cannot be revised by writ of mandamus. And it would be little short of absurdity to compel the Superior Court to enter a final judgment under circumstances that would warrant the same court, if judgment had been entered, in granting a review, under the Gen. Sts. c. 146, or in setting aside the judgment on petition, under the St. of 1875, c. 33. Exceptions overruled.
