5 Mass. App. Ct. 750 | Mass. App. Ct. | 1977
This case purports to come before us as an interlocutory appeal under the second paragraph of G. L. c. 231, § 118, as appearing in St. 1977, c. 405.
The intent of the Legislature in enacting St. 1977, c. 405, was to eliminate a significant difference between our appellate practice and that of the Federal courts. In Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 468 (1975), the Supreme Judicial Court observed that the incorporation into our practice of the Federal rules of civil and appellate procedure did not bring with it the Federal practice of allowing interlocutory appeals as of right from orders relating to preliminary injunctions; that that practice was based not on rule, but on a statute, 28 U.S.C. § 1292(a) (1) (1970); and that the Commonwealth had no corresponding statute. The second paragraph of G. L. c. 231, § 118, inserted by St. 1977, c. 405, tracks the language of § 1292(a) (1) and was obviously intended to make our practice conform to Federal practice in that respect.
In Federal practice the procedure for taking an appeal from an interlocutory order that is appealable as of right is precisely the same as that for taking an appeal from a final judgment. 9 Moore’s Federal Practice par. 110.21
Two other features of interlocutory appeals under 28 U.S.C. § 1292 (a)(1), should be noted. First, such an appeal is permissive, not mandatory, in the sense that a person aggrieved by an order granting or denying a preliminary injunction is not foreclosed by his failure to ap
Interlocutory appeals authorized by the 1977 amendment are beginning to be entered in this court in substantial numbers. In some, motions have been filed for speedy hearing of the appeal. Our general practice, subject to exception when particular circumstances necessitate, has been and will be to deny such motions. Given the present disequilibrium in appellate dockets
Appeal dismissed without costs.
Section 118, as so appearing, reads: “A party aggrieved by an interlocutory order of a justice of the superior court or the judge of the housing court of the city of Boston or the judge of the housing court of the county of Hampden, may file a petition in the appropriate appellate court seeking relief from such order. The appellate court may, in its discretion, grant the same relief as an appellate court is authorized to grant pending an appeal under section one hundred and seventeen.
“A party aggrieved by an interlocutory order of a justice of the-superior court or the judge of the housing court in the city of Boston or the judge of the housing court of the county of Hampden granting, continuing, modifying, refusing or dissolving a preliminary injunction, or refusing to dissolve a preliminary injunction may appeal therefrom to the appeals court or, subject to the provisions of section ten of chapter two hundred and eleven, to the supreme judicial court, which
“The filing of a petition hereunder shall not suspend the execution of the order which is the subject of the petition, except as otherwise ordered by the appellate court.”
We issue this opinion without first entertaining briefs or argument in order to dispel promptly the apparent confusion which has arisen as to the import and requirements of the new statute.
Confusion has apparently resulted from the statutory placement of the new interlocutory appeal procedure in the same section with another remedy which, though obtainable in an appellate court, is not appellate in nature. The first paragraph of G. L. c. 231, § 118, which derives from G. L. c. 214, § 22, as in effect prior to St. 1973, c. 1114, § 62, authorizes a single justice, inter alia, to suspend, modify or annul an interlocutory order entered in the Superior Court or a Housing Court. Relief under the first paragraph of § 118 is sought by a petition which sets out in narrative form the proceedings below and the basis for the relief sought, and such relief is generally not given until after a hearing has been held by a single justice. Unlike an appeal, which is heard on the basis of the record in the court below, the single justice normally hears a petition under the first paragraph on the basis of representations of the parties and copies of such affidavits or other papers as the parties may file, although the single justice may, in his discretion, send for and examine the original papers which were before the lower court.
The statute is not entirely clear on this point. The single sentence in the third paragraph refers to the “filing of a petition hereunder” and the “order which is the subject of the petition” (emphasis supplied both places), and the word “petition” is used previously only with respect to applications for single justice relief under the first paragraph. The sentence in question appeared at the end of the first paragraph prior to St. 1977, c. 405, which added the second paragraph. We can think of no reason for detaching the sentence from the first paragraph and moving it to the end of the section other than to make it applicable as well to appeals under the new second paragraph.
The total number of appeals entered in this court has risen from 393 in the first year of its existence (August, 1972, through July, 1973) to an even 1,000 in the most recent corresponding period (August, 1976 through July, 1977). Appellate entries in the calendar year
See note 3, supra.