Morgan v. Steele , 242 Mass. 217 ( 1922 )

Rugg, C.J.

This suit in equity was heard in the Superior Court. A finding of facts was made by the presiding judge and a final decree entered in favor of the plaintiff. The defendant seasonably appealed. Thereafter the defendant filed a motion praying that the case be reopened and reviewed, on the ground that the trial on the merits was not postponed as requested.

The entry of the final decree ended the jurisdiction of the Superior Court to deal with the case except on a bill of review, save in exceptional instances of which this is not one. Thompson v. Goulding, 5 Allen, 81. White v. Gove, 183 Mass. 333, 340. Shannon v. Shepard Manuf. Co. Inc. 230 Mass. 224, 229. Martell v. Dorey, 235 Mass. 35, 40. The motion in the case at bar is not a bill of review either in form or substance. Clapp v. Thaxter, 7 Gray, 384. Elliott v. Balcom, 11 Gray, 286. Mulrey v. Carberry, 207 Mass. 390. It is simply a statement that, when the case was reached for trial, the defendant was not ready to go forward because of the absence of witnesses. Whether a case when reached for trial shall be heard, or continued for hearing at a later time, rests in sound judicial discretion. Noble v. Mead-Morrison Manuf. Co. 237 Mass. 5, 16.

The judge, without passing upon the legal questions presented but assuming them all in favor of the defendant, heard and denied the motion on its merits on the ground that nothing appeared which would have changed the conclusions reached in the findings of facts. In this there was no error of law.

Order denying motion for rehearing affirmed.

Decree affirmed with costs.