35 Mass. App. Ct. 66 | Mass. App. Ct. | 1993
When the district attorney brought an action in the Superior Court pursuant to G. L. c. 272, § 28C, seeking to have 355 identified books adjudicated as obscene, the defendant, Capital Video Corp. (Capital), filed an answer claiming to be a party interested in the dissemination of the publications.
1. Denial of motion for summary judgment. As a general principle, the denial of a motion for summary judgment is not appealable after trial. Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 126 (1986). While that rule may not be an absolute bar where the trial and the motion for summary judgment involve dissimilar issues, see Bacon v. Federal Kemper Life Assur. Co., 400 Mass. 850, 851 n.3 (1987), we have been directed to no decision in which the exception has been applied to permit appeal by a prevailing party. Only extraordinary circumstances would justify the expenditure of scarce judicial resources to review an unsuccessful interlocutory claim of the party who ultimately prevailed in a lower court.
2. Mootness of constitutional issues. The judgment that was entered on the jury’s verdict protects Capital from prosecution or injunction relating to dissemination of the books in question. General Laws c. 272, §§ 29 and 30. “Ordinarily, litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome.” Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976). Conventional doctrine dictates that courts do not de
Judgment affirmed.
General Laws c. 272, §§ 28C-28H, contain in rem procedures which are a condition precedent to criminal prosecution under § 29 for dissemination of “books.” Commonwealth v. Zone Book, Inc., 372 Mass. 366,
The constitutional claims essentially were focused upon the procedure by which the books were seized and the facial and “as applied” validity of G. L. c. 272, §§ 28C-28H.