220 Mass. 146 | Mass. | 1915
This is a petition to vacate a judgment entered in the Municipal Court of the City of Boston. A decisive question is whether the petitioner seasonably asked for a report by the trial judge of that court to its Appellate Division. It is required by St. 1912, c. 649, § 8, that a party aggrieved by any ruling on a matter of law may have the ruling reported as of right, but “The request for such a report shall be filed with the clerk within two days after notice of the ruling.” The record of the case in the Municipal Court showed that the defendant, who is the petitioner to vacate the judgment, filed'requests for rulings on December 24, 1912, and that on December 30 the judge found for the plaintiff, the respondent to the petition, and filed a memorandum of rulings, and that judgment was entered on January 3, 1913. The ruling of the trial judge must have been made not later than December 30, 1912. The only evidence as to the time when notice of this finding and ruling was given came from a clerk of the Municipal Court, who testified that he personally delivered such notice to the attorneys for the defendant on December 31, 1912. The request for a report was filed on January 3, 1913. Manifestly this request was not filed within two days after notice of the ruling.
A rule of the Municipal Court provided that within three days “after the cause is otherwise ripe for judgment . . . the party requesting the report shall file a draft thereof.” An assistant clerk of the Municipal Court testified that this cause was “otherwise ripe for judgment” on December 30, 1912. This evidence is confirmed by the transcript of the record of the case. The draft report was not filed within three days from this date.
The petitioner fails on both grounds.
Exceptions overruled.
