Opinion
October 24, 1933.
October 25, 1933.
Present: RUGG, C.J., CROSBY, PIERCE, DONAHUE, LUMMUS, JJ.
Practice, Civil, Appeal, Exceptions.
No appeal lies to this court from a refusal of a request for rulings and a finding by a judge of the Superior Court who heard an action at law without a jury upon a report of an auditor, whose findings of fact were not final, and upon evidence on the question of damages. In order to bring to this court questions of law, raised, at the hearing of an action at law in the Superior Court by a judge without a jury, by rulings of the judge upon requests for rulings, a party should proceed by a bill of exceptions.
CONTRACT OR TORT. Writ dated June 29, 1931.
In the Superior Court, the action was heard without a jury by Whiting, J., who found for the plaintiff in the sum of $500. The defendant appealed.
The case was submitted on briefs.
L.H. Peters, for the defendant.
J.C. McDonald J.H. Mathews, for the plaintiff.
This is an action of contract or tort. It was referred to an auditor whose findings of fact were not final. The defendant in accordance with Rule 88 of the Superior Court (1932) made reservation of the right to introduce further evidence. The case was heard on its merits, the plaintiff introducing only the report of the auditor and the defendant offering evidence on the question of damages. After this trial the trial judge made a finding for the plaintiff. The record consists of the auditor's report, the defendant's requests for rulings with certain memoranda of action thereon by the trial judge, and the findings. The defendant appealed from the order of the court finding for the plaintiff and denying the defendant's requests for rulings.
The case is improperly before us by appeal. The only way in which the defendant could have brought the case here was by exceptions. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. Check v. Kaplan, 280 Mass. 170, 174. Ballou v. Fitzpatrick, 283 Mass. 336.
Appeal dismissed.