Opinion
October 9, 1936.
October 27, 1936.
Present: RUGG, C.J., CROSBY, PIERCE, LUMMUS, JJ.
Practice, Civil, Appeal.
An appeal does not lie to the full court from a decision by a single justice in a proceeding at law.
WRIT OF ERROR, filed in the Supreme Judicial Court for the county of Plymouth on December 31, 1935.
After the writ had issued and the Superior Court had made a return thereon, the defendant in error filed what she entitled a "demurrer" "to the plaintiff's petition for a writ in error," assigning as reasons "that the matters contained in the plaintiff's petition and assignment of errors state no cause for the issuance of a writ of error." After a hearing thereon by Field, J., an order was issued that the "said demurrer" was "sustained," and that the judgment referred to in the petition "be, and the same is hereby, affirmed." The plaintiff in error appealed from that order.
J.P. Barlow, for the plaintiff in error, submitted a brief.
No argument nor brief for the defendant in error.
This is a petition for a writ of error. The defendant in error filed a general demurrer. The single justice sustained that demurrer and ordered the judgment affirmed. Rule 30 of the Supreme Judicial Court for the Regulation of Practice at Common Law (1926), 252 Mass. 598. The plaintiff in error undertook to appeal to the full court. It has long been established that appeal does not lie from a decision of a single justice of the Supreme Judicial Court in a proceeding at law. That procedure is confined to appropriate cases in the Superior and some other courts. The proper method of seeking review by the full court of a decision or ruling by a single justice in an action at law, if not reported by him, is by a bill of exceptions. G.L. (Ter. Ed.) c. 231, § 96. Channell v. Judge of Central District Court of Northern Essex, 213 Mass. 78, and cases cited. Cote v. Judge of Second District Court of Eastern Middlesex, 225 Mass. 123. St. Nicholas Russian Benefit Society, Inc. v. Yaselko, 279 Mass. 81, 83. Sheehan v. Judge of the District Court of Springfield, 280 Mass. 467.
Appeal dismissed.