Home NEVA A. JUDKINS, executrix, vs. CHARLES E. SAWYER & another.

310 Mass. 832

February 3, 1942

Appeal dismissed. The plaintiff attempted in this action at law to appeal from an order of a judge of the Superior Court denying, after hearing, the motion of the plaintiff for leave to file a substituted declaration. The right of appeal in a common law action is purely statutory. It is conferred only by G. L. (Ter. Ed.) c. 231, Section 96, and by that statute is limited to three classes of cases. The denial of the motion was not an "order . . . founded upon matter of law apparent on the record," within the meaning of that statute, from which an appeal may be taken. Means v. Leveroni, 297 Mass. 61 , 64. Summers v. Boston Safe Deposit & Trust Co. 301 Mass. 167 , 168. Nor was such a denial an order within either of the other two classes of cases, referred to in that statute, in which appeals may be taken.

Home OWEN KERRIGAN, administrator, vs. ALICE M. KERRIGAN.

310 Mass. 832

February 4, 1942

Exceptions dismissed. This bill in equity brought in the Superior Court was dismissed by a final decree. The plaintiff appealed but did not perfect his appeal. After the entry of the final decree the plaintiff made a motion for a new trial based, in part, on the ground that the judge entering the decree failed to comply with the provisions of Section 14A, inserted in c. 220 of the General Laws by St. 1936, c. 206, relating to the time in which a case should be decided. A hearing was had upon the motion. The plaintiff's requests relating to such motion were denied, and the motion was denied. The plaintiff excepted. The exceptions bring nothing before us. The suit was within the general equity jurisdiction of the Superior Court. The final decree was a decree of that court. Even if there was irregularity in its entry -- a matter upon which we intimate no opinion -- it must stand unless reversed under some recognized procedure. Moll v. Wakefield, 274 Mass. 505 , 507. A motion for a new trial is not such procedure. The court had no jurisdiction

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to reverse or set aside the decree on a motion for a new trial. White v. Gove, 183 Mass. 333 , 339-340. Morgan v. Steele, 242 Mass. 217 , 218. Boston v. Santosuosso, 302 Mass. 169 , 174. The judge might well have declined to entertain the motion or dismissed it, instead of denying it. See Respro, Inc. v. Worcester Backing Co. 291 Mass. 467 , 472; Henry L. Sawyer Co. v. Boyajian, 303 Mass. 311 , 313. But the result is the same in substance.