313 Mass. 364 | Mass. | 1943
This is an appeal by the defendant in a case tried in the Municipal Court of the City of Boston, from an order of the Appellate Division whereby the defendant’s petition to establish a report was denied. Rule 30 of the Municipal Court of the City of Boston (1932) as amended in 1935. See now Rule 30 (1940).
The opinion of the Appellate Division sets forth that “it appears of record that the claim of report was disallowed pursuant to rule 29 which provides that the time for filing a draft report can be extended upon application made within five days after notice of the finding or decision in the case,” that the “defendant’s motion to extend the time to and including June 23,. 1939, for filing the draft report was duly allowed June 8, 1939, and on June 23, 1939, a second motion to extend the time to and including July 24, 1939, for filing the draft report was allowed upon application of defendant. The draft report was filed July 19, 1939.” It further appears from the opinion that the Appellate Division ruled that the “court’s power to extend the time for filing the draft report ceased after the allowance of the first application for extension, therefore the draft report not having been duly filed the claim of report was rightfully disallowed.”
Ordinarily the opinion of the Appellate Division is not a part of the record of a case on appeal (Jones v. Cella, 284 Mass. 154, 159), but the practice upon a petition to establish a report differs from the practice upon a report. In the former situation, unlike the latter, the Appellate Division makes findings of fact, and unless the material facts are found by the Appellate Division no question of law is presented to this court by an appeal from the denial of the petition to establish a report. Cohen v. Berkowitz, 215 Mass. 68. Sawsik v. Ciborowski, 256 Mass. 583. Wilson v. Checker Taxi Co. 263 Mass. 425, 426. Patterson v. Cibo
It is contended, however, by the plaintiff that this question is not raised by a petition to establish the report. The plaintiff’s contention is that the defendant’s remedy was by a request for a report of the order that the claim for report be disallowed. He rests this contention upon Gallagher v. Atkins, 305 Mass. 261, and Murray v. Edes Manuf. Co. 305 Mass. 311. But the situation in those cksfes' was different from the situation here. The orders tiíeíte' in' question were interpreted as orders dismissing claims for reports and draft reports. The result of such an Order''is that thereafter there is no draft report upon the ffllg' o'fthe court that can be established upon a petition to establish a report. Gallagher v. Atkins, 305 Mass. 261, 262-263. Consequently the only method of reviewing such an order was upon a request for a report analogous to an exception to an order dismissing a bill of exceptions. See Day, petitioner, 234 Mass. 576, 577; Glick, petitioner, 299 Mass. 255, 257. But the record in the present case recites that the claim of report was “disallowed.” It may well be that an order “dismissing” the claim for report would have been an appropriate order if warranted by the facts.
On the facts stated in the opinion the defendant’s petition to establish the report was rightly denied on the ground that the draft report was not filed seasonably. Rule 29 of the Municipal Court of the City of Boston (1932)/ as amended in 1935 (see now Rule 29 [1940]), provides in part that the “party requesting a report shall file a draft thereof within five days after notice of the finding or decision in the cause unless further time is allowed by the cóurí upon application made within such five days.” Rule *2'of the Municipal Court of the City of Boston (1932) (see now Rule 2 [1940]) provides in part that the “court in its discretion may order or permit pleadings to be filed,'or any act to be done, at other times than are provided in these rules; but this shall not apply to any action required to obtain legal review by the appellate division.”' These rules must be strictly observed and cannot be waived by the parties or changed by an individual judge. Murphy v. William C. Barry, Inc. 295 Mass. 94, 97. “Individual judges have no power to dispense with rules lawfully adopted for the conduct of' the business of the courts.” Carp v. Kaplan, 251 Mass. 225, 228. Kaufman v. Buckley, 285 Mass. 83, 86.
The defendant’s draft report was not filed within the time
176. Rule 29, as amended, makes no express exception to the requirement that a draft report be filed “within five days aftér notice of the finding or decision in the cause” other than where “further time is allowed by the court upon application made within such five days.” The words “such five days” clearly mean “five days after notice of the finding or decision in the cause.” And no other exception to the requirement of filing a draft report within the five-day period can fairly be implied. If it had been intended to authorize an extension' of time for the filing of a draft report upon application therefor made at any time before the expiration of the time fixed by rule or order for filing such a report, it would not have been difficult to express that intention in the rule. But, as already stated, no such intention is expressed or fairly to be implied. On the contrary, the 'language of the rule naturally interpreted negatives such an intention. See Spaulding v. McConnell, 307 Mass. 144, 146-147.
' It has been indicated that the practice upon review of rulings of District Courts on reports, so far as appropriate and not inconsistent with statutes or rules, should follow by analogy the practice upon review of rulings of the Superior Court on exceptions. Vengrow v. Grimes, 274 Mass. 278, 279. Gallagher v. Atkins, 305 Mass. 261, 262-264. The defendant urges that the practice in the Superior Court with respect to extensions of- time for filing bills of exceptions should be followed with respect to extensions of time for filing draft reports. But Rule 73 of the Superior Court
The record in the present case fails to show that the application for the second extension of time was made within the five-day period fixed by Rule 29 as amended. And the defendant makes no contention that it was so made. It follows that the Appellate Division was right in ruling that the defendant’s draft report was not seasonably filed and on that ground denying the petition to establish the report.
Order denying petition to establish report affirmed.