352 Mass. 466 | Mass. | 1967
This is a petition for a writ of mandamus for a supersedeas to issue and secure the return of the execution in the case of Burnham v. MacWhinnie brought in the First District Court of Essex. It also seeks an order to compel the clerk of that court to file the petitioner’s motion for a new trial.
The facts do not appear to be in dispute. The petitioner, appearing pro se, originally brought an action of replevin in the District Court. The trial judge found for the defendant and assessed damages. “The case was then carried through the Appellate Division to this Court . . . [which] affirmed the order of the Appellate Division dismissing the report. ...” Burnham v. MacWhinnie, 350 Mass. 17.
On January 27,1966, after the rescript, the petitioner delivered to the clerk of the First District Court of Essex the
On February 18,1966, the petitioner delivered to the clerk a written motion “requesting that the Court order the [cjlerk ... to file and enter in the [djocket all the papers including the appearance of counsel delivered to the [c]lerk . . . on January 27, 1966; that the [cjlerk . . . refused to file this motion or enter it in the [djocket.” On March 1, 1966, the petitioner, appearing pro se, brought this petition for mandamus in the Superior Court. After a hearing, an order denying the petition was entered by the trial judge. The case is here on the petitioner’s exceptions to the order of the judge.
The clerk argues that mandamus will not lie where there is a “ speedy, plain and adequate remedy at law. ’ ’ He cites Cambridge Sav. Bank v. Clerk of Courts for County of Hampden, 243 Mass. 424, 427-428, and Royal Tool & Gauge Corp. v. Clerk of the Courts for the County of Hampden, 326 Mass. 390, 392. In the latter case we said, " [T]he petitioner’s remedy for any failure of the clerk . . . would have been by simple motion in the court in which the case was. pending for a direction to the clerk to take the proper steps and not by an independent petition for a writ of mandamus. ’ ’ But the petitioner did seek by motion to request the court to order the clerk to enter the previously tendered papers. The clerk refused to file that motion as well. In these circumstances we cannot say that the petitioner had an adequate remedy.
If the motion for a new trial had been accepted by the clerk when it was presented to him for filing on January 27,
The exceptions are sustained. The writ is to issue directing the clerk of the First District Court of Essex to enter the petitioner’s motion for a new trial and appearance of counsel as of January 27,1966.
So ordered.