ALBERT J. NORWOOD vs. HELEN J. DODGE, administratrix.

RUGG, C. J. This is an action of contract against the estate of a decedent to recover for board, washing and nursing. It

Page 352

was brought in the Municipal Court of the City of Boston and on appeal came on for trial in the Superior Court. Before the jury was impanelled the defendant orally objected to the counsel of record for the plaintiff acting for her on the ground that he had previously been of counsel for the estate of the defendant's intestate in the same matter. Later a written motion was filed to the same effect. The defendant's exceptions to the refusal by the judge [Note p352-1] to direct the plaintiff's counsel not to proceed brings the case here. Rule 3 of the Superior Court, provides that "the right of an attorney of this court to appear for any party shall not be questioned by the opposite party, unless the objection be taken in writing within ten days after his appearance." This rule was well within the authority of the Superior Court and had the force of law. Pratt v. Pratt, 157 Mass. 503. It was not complied with and hence the defendant has no ground of exception. The wisdom of the rule is well illustrated by the proceedings in this case.

The parties were in court ready to try to a jury issues of fact raised by the pleadings. The right of an attorney to appear for one of the parties had no connection whatever with the rights of the respective parties touching the matters to be tried in the action. To interject at this stage a collateral matter having nothing to do with the merits of the case could not fail to be distracting and might work injustice.

The conduct of the trial judge was not open to exception in the respects complained of.

Exceptions overruled.

The case was submitted on briefs.

C. W. Rowley, for the defendant.

J. Cummings, for the plaintiff.