Opinion
December 6, 1963.
Albert W. Wunderly for the respondent.
Carlton W. Spencer ( Arthur O. Ricci with him) for the First Federal Savings and Loan Association of Boston.
Exceptions overruled. The respondent comes here on exceptions taken during the trial of a petition brought on May 13, 1959, for damages for land taken from the petitioner, Pieper, on May 27, 1958. On November 3, 1960, First Federal Savings and Loan Association of Boston (Federal), mortgagee of the land taken, having received notice under G.L.c. 79, § 32, answered. Neither Pieper nor his attorney was present when the petition was reached for trial, and counsel for Federal proceeded to try the case after agreement by the court and the parties present that Federal's answer might be treated as a joinder of Federal as a petitioner. After the opening on behalf of Federal, the respondent moved to nonsuit Pieper and complains here upon the denial of the motion. The denial lay within the sound discretion of the judge. See Priest v. Wheeler, 101 Mass. 479. General Laws c. 79, § 36, is designed to expedite the disposition of a petition such as this when all parties interested are before the court, and it specifically provides that "any party thereto may prosecute the same." Federal had unquestionably qualified to go forward. That its answer was treated as a joinder upon the consent given in open court by the respondent in no way prejudiced the respondent. The respondent's request that the judge charge the jury that no provision of law requires that the vote of a town authorizing a taking be recorded was rightly refused in the face of his charge which was sufficiently comprehensive relative to the recording of the order of taking. In the state of the evidence there was no error in his refusal to grant the respondent's requests for instructions with regard to revenue and excise stamps affixed to a deed of land adjacent to that taken.