5 Mass. App. Ct. 692 | Mass. App. Ct. | 1977
This civil action, heard in a Probate Court, was of an equitable nature and was therefore subject to the Massachusetts Rules of Civil Procedure. See Mass.R.Civ.P. 1, 365 Mass. 730 (1974). Judgment was entered for the defendants on June 7,1977. On June 14,1977, the plaintiffs filed a motion for a new trial, but they did not cause the motion to be served upon the defendants within ten days of the entry of judgment, as required by Mass.R.Civ.P. 59 (b), 365 Mass. 827 (1974). For that reason, among others, the probate judge on August 11, 1977, denied the motion. On September 1,1977, the plaintiffs filed a notice of appeal from the judgment and from the denial of the motion for a new trial. The defendants have moved to dismiss the appeal on the ground that the notice of
The latter rule required that the notice of appeal in this case be filed within thirty days after June 1,1977, the date of entry of the judgment appealed from, unless the running of time was stayed by the filing of the motion for new trial on June 14. If that motion was timely, it had the effect of terminating the running of the thirty-day period for filing the notice of appeal. Mass.R.A.P. 4, second par. 6A Moore’s Federal Practice, par. 59.09[4] (2d ed. 1974). If the motion was not timely, the period within which the notice of appeal might have been filed as of right expired on July 7, 1977. See 9 Moore’s Federal Practice, par. 204.12 [2] (2d ed. 1975), and cases cited in 6A Moore’s, par. 59.09 [3] n.4. The time for filing the motion for new trial could not have been extended. Mass.R.Civ.P. 6 (b), 365 Mass. 747 (1974).
Whether the motion for new trial was timely turns on the construction to be given Mass.R.Civ.P. 59(b). That rule reads: “Time for Motion. A motion for a new trial shall be served not later than 10 days after the entry of judgment.” The language is identical to that of rule 59 (b) of the Federal Rules of Civil Procedure. We therefore look to the construction given that rule by the Federal courts. Rollins Environmental Serv. Inc. v. Superior Court, 368 Mass. 174, 179-180 (1975). Martin v. Hall, 369 Mass. 882, 884-885 (1976). Westinghouse Elec. Supply Co. v. Healy Corp., ante, 43, 47 (1977).
Under Federal case law, a motion for a new trial under rule 59 (b) is not timely unless it has been served on each
Therefore, the motion for a new trial, although filed within ten days of the entry of judgment, was not timely because it was not served within that time. It follows that it did not stay the running of the time for filing the notice of appeal and that the notice of appeal was not filed within the thirty-day period allowed by Mass.R.A.P. 4. The appeal from the judgment must be dismissed.
We assume, without deciding, that the appeal filed on September 1,1977, because filed within thirty days of the
The appeal, in so far as it is from the judgment entered on June 7, 1977, is dismissed. Insofar as the appeal is from the order of August 11, 1977, denying the motion for a new trial, the entry will be, “Order affirmed.”
So ordered.
In accordance with the usual practice of this court, the motion to dismiss was held without action for a ten-day period: seven days being the normal period for filing a response in opposition, Mass.R.A.P. 15(a), 365 Mass. 859 (1974), augmented by three days because the motion to dismiss had been served by mail. See Mass.R.A.P. 14(c), 365 Mass. 859 (1974). No response in opposition to the motion having been received within that period, the motion was submitted for disposition on the motion and supporting papers to a panel comprised of three Justices of the court. See G. L. c. 211A, § 3. A single justice of this court is without power to allow a motion to dismiss an appeal. See Mass.R.A.P. 15(c), 365 Mass. 860 (1974). There is nothing which prohibits his denying such a motion.