Murphy v. Boston, Clinton & Fitchburg Railroad , 110 Mass. 465 ( 1872 )

Gray, J.

By the St. of 1869, e. 438, “ questions of law,” “ arising upon a trial or other proceeding before the Superior Court, may, by consent of the parties to the suit, be reported before verdict for the determination of the Supreme Judicial Court.” In order to give this court jurisdiction of a question reported under this statute, it must be a question arising in the case, and not a merely abstract or hypothetical question which may never arise; and it must be a question, an opinion upon which, at least if given one way, will take the form of a judgment determining rights of the parties. It is no part of the duty of this court, either upon a case stated by the parties, or upon the report of a judge of an inferior court, to answer questions which are merely speculative, or which, however they may be decided, will leave the whole case open. Smith v. Cudworth, 24 Pick. 196. Capen v. Washington Ins. Co. 12 Cush. 517.

In the report now before us, the first question reserved is not a question arising in this case, for the defendant had waived no objection to the form of action which was open to him under the pleadings, and the plaintiff could recover, if at all, only upon a declaration actually filed. And it does not appear by the terms of the report, or by any agreement of counsel, that a decision of the other questions reserved, either way, would be a final determination of the case or be followed by any judgment whatever. Indeed, the plaintiff’s counsel at the argument avowed his intention, if this court should be of opinion that the action could not be maintained upon the present declaration, to move in the Superior Court for leave to file an amendment thereof. Such a motion would be addressed to the discretion of the presiding judge, the exercise of which could not be revised by this court upon exceptions or report, and should have been made and decided before bringing up the question whether the action could be maintained. Payson v. Macomber, 3 Allen, 69. Hubner v. Hoffman, 106 Mass. 346. McCormick v. Carroll, 103 Mass. 151.

Report dismissed.