Home EARL MOWER vs. DANIEL B. BEARD, executor.

213 Mass. 198

November 7, 1912 - December 2, 1912

Essex County


Practice, Civil, Appeal.

An appeal to this court in an action at law brings before the court only errors of law apparent on the record.

CONTRACT for $102.50 with interest from February 1, 1910. Writ in the District Court of Southern Essex dated January 15, 1912.

The defendant filed a plea in abatement alleging that the defendant at the time the action was brought was not living within and had no usual place of business within the jurisdiction of the court.

On April 1, 1912, the case was entered on appeal in the Superior Court. On June 18, 1912, Hall, J., made an order overruling the plea in abatement. On July 15, 1912, the defendant filed an appeal from the order overruling his plea in abatement.

The defendant's general answer, not waiving his plea in abatement, contained a general denial and an allegation of payment. The case was heard on the merits by McLaughlin, J., without a jury. On September 19, 1912, he found for the plaintiff in the sum of $119.19.

On September 20, 1912, the plaintiff filed a motion that the defendant's claim of appeal, filed July 15, 1912, from the order of June 18, 1912, overruling the defendant's plea in abatement, be stricken from the docket. This motion was allowed by

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McLaughlin, J., on the day that it was made. On October 7, 1912, the defendant appealed from the order allowing the plaintiff's motion to dismiss the defendant's claim of appeal.

D. B. Beard, pro se, submitted a brief.

S. H. Hollis, (R. T. Parke with him,) for the plaintiff.

RUGG, C. J. Assuming (but without so deciding) in favor of the defendant that his appeal was seasonably taken and properly entered here, no error is shown. The plea in abatement raised an issue of fact. The action of the Superior Court in overruling it presents no question of law. An appeal in an action at law brings before this court only errors of law apparent on the record. Electric Welding Co. v. Prince, 200 Mass. 386, 392.

Appeal dismissed with double costs.