Whitney v. Hunt-Spiller Manufacturing Corp. , 218 Mass. 318 ( 1914 )

Rugg, C. J.

The only question presented by this record is whether a judge of the Superior Court has power to extend the time within which a motion to set aside a verdict and to grant a new trial may be filed, when no such motion has been filed within three days after the return of the verdict. Rule 41 of the Superior Court provides that “no motion for a new trial shall be sustained in a civil action after verdict ... [in enumerated cases] . . . unless within three days after the verdict is returned ” a motion therefor is filed. “For cause the time for filing such motion may be extended by the court.” This question must be answered in the affirmative on the authority of Dolan v. Boott Cotton Mills, 185 Mass. 576. That case decided that Rule 18 of the Superior Court, as it then was, (now Rule 16,) which provided that “The notice that a party desires a trial by jury shall be filed not later than ten days after the time allowed for filing the answer . . . unless the court by special order shall extend the time” meant that the court had discretionary power to make an order permitting a trial by jury after the expiration of the ten days, even although no application for it had been .filed within that time. The words of these two rules are almost identical, the decisive one, “extend,” being the same. As pointed out in Dolan v. Boott Cotton Mills, the word “extend” in similar rules or statutes has been interpreted not to imply the existence of an unexpired portion of the period. Cleverly v. O’Connell, 156 Mass. 88. Haynes v. Saunders, 11 Cush. 537. The present rule is dealing with the exercise of a right inherent in the right of trial by jury secured by the constitution. Opinion of the Justices, 207 Mass. 606.

It hardly is to be expected that the court would deprive itself absolutely of the power to set aside a verdict which its sound judicial discretion should pronounce so unjust that it ought not to be permitted to stand. The reason why “extend” should be given a meaning sufficiently broad to permit the exercise of the power after the expiration of the period limited are quite as strong in the case at bar as in any of the decisions cited. As is pointed out in Hack v. Nason, 190 Mass. 346, the rule respecting the allowance of additional time for filing exceptions is different and not inconsistent with that here followed, for in that case the motion must be presented within the initial period allowed.

Order allowing motion for new trial to stand.