Practice, Civil, Report of assessor, Exceptions, New trial. A motion to recommit the report of an assessor is addressed to the discretion of the presiding judge and his decision thereon is not the subject of exception or appeal.
If a party to an action desires the findings of an assessor to be reviewed by the Superior Court, he must take specific objections to them and request a report of so much of the evidence as bears upon the points covered by his exceptions. Only in this way can rulings of the Superior Court on questions of law relating to the assessor's report be brought before this court.
In an action of contract after the question of the defendant's liability has been decided against him by this court and the case is ordered to stand for the assessment of damages and is sent by the Superior Court to an assessor, the defendant cannot raise the question of his liability either at the hearing before the assessor or by a request for a ruling of the Superior Court on a motion for a new trial.
HAMMOND, J.
1. The motion to recommit the report to the assessor was addressed to the discretion of the judge and his decision thereon is not subject to exception or appeal. If the defendant desired the findings of the assessor to be reviewed by the Superior Court, he should have taken specific objections to them and have requested a report of so much of the evidence as bore upon the points covered by the exceptions. If this had been done, these questions could have been brought to this court. Carew v. Stubbs, 161 Mass. 294, and cases cited.
2. It does not appear that there was any error in law in overruling the motion for a new trial. The question of liability had been determined already against the defendant ( 181 Mass. 275) and it was not open to it to raise that question either at the hearing before the assessor or, by a request for a ruling by the court, on a motion for a new trial. Paddock v. Commercial Ins. Co. 104 Mass. 521.
3. The court had the power to order judgment upon the report of the assessor, and no error in law appears. Carew v. Stubbs, ubi supra, and cases cited.
The result is that the exceptions are overruled and the order for judgment from which the defendant appealed is affirmed.
So ordered.