Old Colony Trust Co. v. Clarke, 291 Mass. 17, 23 (1935). DeVeer v. Pierson, 222 Mass. 167, 174-175 (1915), Beaman v. Elliot, 10 Cush. 172, 173 (1852). Borden v. Borden, 5 Mass. 67, 77 (1809).
On the other hand, if "the facts on which the rights of the parties depend have not been ascertained at the trial it is within the power of the court, in its discretion and of its own motion, to recommit the cause for re-trial." DeVeer v. Pierson, 222 Mass. 167, 175 (1915). See Watkins v. Simplex Time Recorder Co. 316 Mass. 217, 224 (1944); Mackey v. Rootes Motors Inc. 348 Mass. 464, 469 (1965).
"Where the facts on which the rights of the parties depend have not been ascertained at the trial it is within the power of the court, in its discretion and of its own motion, to recommit the cause for re-trial." DeVeer v. Pierson, 222 Mass. 167, 175. Lenari v. Kingston, 342 Mass. 705, 710. Lattuca v. Cusolito, 343 Mass. 747, 753. "Whether the rehearing should be before the court or before a master is for the Superior Court to decide.
The primary question here presented is whether this appellant has been deprived of his right to further prosecute his suit because of his conveyance by warranty deed of all of his interest in the suit property. An absolute transfer pendente lite of the realty involved will deprive plaintiff, in a suit such as this, of the right to prosecute the suit to final determination, but, if plaintiff is still interested by virtue of the warranty of title in the deed, the right to prosecute the suit to final judgment is not defeated. Holder v. Taylor, 233 Ala. 477, 172 So. 761; Burt v. Brandon, 230 Ala. 85, 159 So. 691; McDowell v. Herren, 219 Ala. 370, 122 So. 336; DeVeer v. Pierson, 222 Mass. 167, 178, 110 N.E. 154, 159; 1 C.J.S. Abatement and Revival § 106b, p. 151. There was a similar problem before this Court in the case of Holder v. Taylor, supra.
The interlocutory decree denying the motion to recommit and the final decree dismissing the bill must be reversed and the suit must be further heard by a master or by the court. DeVeer v. Pierson, 222 Mass. 167, 175. Watkins v. Simplex Time Recorder Co. 316 Mass. 217, 224-225.
"Where the facts on which the rights of the parties depend have not been ascertained at the trial it is within the power of the court, in its discretion and of its own motion, to recommit the cause for re-trial." DeVeer v. Pierson, 222 Mass. 167, 175. Smith v. Commonwealth, 331 Mass. 585, 593-594, and cases cited.
In these circumstances and since the case must go back for further action of the trial judge in any event, we think that the judge should make further findings on the issue of negligence, because unless negligence is established the assessment of damages by the trial judge was not justified. "Where the facts on which the rights of the parties depend have not been ascertained at the trial it is within the power of the court, in its discretion and of its own motion, to recommit the cause for re-trial." DeVeer v. Pierson, 222 Mass. 167, 175. Smith v. Commonwealth, 331 Mass. 585, 593-594, and cases cited.
As has been well said, "Where the facts on which the rights of the parties depend have not been ascertained at the trial it is within the power of the court, in its discretion and of its own motion, to recommit the cause for retrial." DeVeer v. Pierson, 222 Mass. 167, 175. Old Colony Railroad v. Wilder, 137 Mass. 536, 538-539.
Rubenstein v. Lottow, 220 Mass. 156, 164. DeVeer v. Pierson, 222 Mass. 167, 175. Comstock v. Soule, 303 Mass. 153, 159.
"Where the facts on which the rights of the parties depend have not been ascertained at the trial it is within the power of the court, in its discretion and of its own motion, to recommit the cause for retrial." De Veer v. Pierson, 222 Mass. 167, 175. Watkins v. Simplex Time Recorder Co. 316 Mass. 217, 224-225, and cases cited.