
    Nancy B. Fay vs. Inhabitants of Upton.
    Worcester.
    November 26, 1890.
    January 7, 1891.
    Present: Field, C. J., W. Allen, C. Allen, Holmes, Knowlton, & Mobton, JJ.
    
      Appeal from, the Superior Court.
    
    No appeal lies from the Superior Court to this court unless the record discloses an error of law.
    No appeal lies to this court from an order of the Superior Court overruling a motion containing allegations of fact, if there is nothing in the record to show that the facts relied on were established in that court, or that any evidence was offered in support of them.
    Appeal from an order of the Superior Court overruling a motion that a judgment upon an assessment of damages for land taken for the relocation of a highway be vacated, and execution thereon stayed. The record transmitted to this court disclosed that Nancy B. Fay filed a petition in the Superior Court, on October 28, 1888, against the town of Upton, for a jury to assess the damages occasioned to her land by the relocation of a highway in that town; that the case was tried in that court at the December sitting of 1889, and the jury returned a verdict for the petitioner and assessed her damages in the sum of twenty-five dollars ; that on May 16, 1890, the respondent town filed a motion in the Superior Court in this and nine similar cases, as, follows :
    “ And now the town of Upton comes and asks that the cases numbered 2622, 2623, 2624, 2625, 2626, 2627, 2628, 2629, 2630, and 2631, on the docket of said court at the last December sitting, may be brought forward on the docket, and that the several judgments therein may be vacated, and execution thereon stayed; and for cause says that it has not entered upon and taken possession of the several premises of the petitioners in said causes for the purpose of constructing the relocated way described in each of said petitions.”
    The record further disclosed that, on October 8, 1890, Dewey, J., ordered that so much of the above motion as related to bringing the cases forward on the docket be allowed if he then had authority to do so, and overruled the remainder; and that the town appealed to this court.
    The case was submitted on briefs to all the judges.
    
      J. Hopkins, for the appellant.
    
      B. W. Potter & H. W. Aiken, for the appellee.
   Knowlton, J.

The record in this case presents no question of law as a foundation for an appeal. The appellant’s motion contains allegations of fact, which must be sustained by evidence before the question of law arises on which the defendant seeks to obtain the decision of the court. There is nothing in the record to show that the facts relied on were established in the * Superior Court, or that any evidence was offered in support of them. See Pub. Sts. c. 152, § 10; Dorr v. Richardson, 114 Mass. 346.

On this record no appeal lies, and the entry must be,

Appeal dismissed.  