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CORA DEMERS another vs. DOMINIC SCARAMELLA.

Practice, Civil, Appeal, New trial. District Court.

An appeal from a decision by an appellate division ordering a new trial of an action in a district court should not be entered in this court until the case has been finally heard in the district court and the appellate division.

RUGG, C.J.

This is an appeal from an order of the Appellate Division of the Western District, reversing a ruling of a judge of the District Court of Springfield and directing a new trial of the whole case. The case is here prematurely. Appeal does not lie immediately to this court from such an order. It is not a final decision. The new trial must be had. Real Property Co. Inc. v. Pitt, 230 Mass. 526. Matson v. Sbrega, 250 Mass. 138, and cases there collected. Beacon Tool Machinery Co. v. National Products Manuf. Co., ante, 88. It may be added that the question which the parties have sought to argue is not fairly presented, because a ruling of law that a plaintiff can recover rarely can be made. Even facts found, unless including a statement of all inferences drawn, do not afford basis for such rulings.

Appeal dismissed.

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DEMERS v. SCARAMELLA
(May 21, 1925)