305 Mass. 261 | Mass. | 1940
This action of tort was tried in a District Court. There was a finding for the plaintiff. The case comes before us on appeal from an order of the Appellate
The course of proceedings in this case has been as follows: Within five days after notice of the finding the defendant filed a claim for a report, and within ten days after such notice, a draft report. See Rules 13, as amended, 27, 28, of the District Courts (1932). Later the trial judge made a supplementary finding of which the defendant was notified, and within five days after notice thereof the defendant filed two more draft reports. Shortly thereafter the plaintiff filed a motion to dismiss the defendant’s claim for a report and the three draft reports on the ground of noncompliance, in the case of each of the draft reports, with the provisions of Rule 28 of the District Courts (1932) that a “copy of such draft report shall be delivered or mailed postpaid by the party requesting the report to the adverse party before the close of the next business day after such filing” of a draft report. On July 26, 1938, the trial judge “allowed” this motion to dismiss and ■ dealt with the defendant’s request for rulings relating thereto. Within five days thereafter “the defendant filed a draft report, which in substance related to the question of the right of the court to allow said motion to dismiss. That draft report is still on file, with no hearing having been held thereon, altho a request for hearing was duly filed.” The docket contains the following: “Memo, rec’d Aug. 9, 1938 from . . . ([the trial judge] stating Draft Report had been disallowed. Notices mailed Aug. 12, 1938.” See Styrnbrough v. Cambridge Savings Bank, 299 Mass. 22. On August 17, 1938, this petition to establish a report was filed. It appears to have been directed to establishing a report of the rulings made at the trial on the merits, though reference is made therein to the action of the trial judge in granting the motion to dismiss.
1. The Appellate Division could not properly establish a report of rulings made at the trial on the merits. A draft report on the files of the court is prerequisite to the establishment of a report. See Rules 28, 30 of the District Courts (1932). After the granting of the motion to dismiss, whether
Where a bill of exceptions is dismissed on the ground of lack of the required notice, the remedy of the aggrieved party is by exception, not by a petition to establish exceptions — at least in the absence of a certificate of the trial judge upon the bill of exceptions stating the material facts
2. The Appellate Division could not properly establish a report of rulings involved in the dismissal of the claim for a report and the draft reports. Indeed this petition was not directed to that end. Moreover, this petition considered as a petition to establish such a report was filed prematurely since, though a draft report relating to the order dismissing the claim for a report and the draft reports had been filed and a hearing thereon requested, no such hearing was had and this draft report had not been disallowed by the trial judge. His action referred to in the docket entry relating to a memorandum of August 9, 1938, cannot be construed as a disallowance of this draft report. See Rule 28 of the District Courts (1932).
3. The result is that the Appellate Division was right in refusing to establish a report. But the true ground for refusing to establish such a report was that, for reasons already stated, the petition to establish a report was not rightly before the Appellate Division. Therefore this peti
So ordered.