303 Mass. 311 | Mass. | 1939
This action of contract on a promissory note was brought in a district court, where there was a finding for the plaintiff. There were several reports to the Appellate Division, all of which were dismissed. An appeal to this court was taken on the matters involved in two of the reports, and the order dismissing the reports was affirmed. 296 Mass. 215. Thereafter the defendant petitioned the Appellate Division to establish a report relating to a denial by the District Court of a motion by the defendant for a new trial based on newly discovered evidence. The petition was denied. The defendant filed an appeal in this court. This court, assuming without deciding that such an appeal lies, affirmed the order of the Appellate Division denying the petition. 298 Mass. 415. The defendant then made a motion — supported by his affidavit to the truth of the facts therein stated — to “stay, abate, or discontinue proceedings” in the case, assigning as ground therefor “that the same was brought (as appears on the record) and prosecuted by a corporation operating as a collection agency which has been forbidden by law and by the terms of an order of judgment from bringing or prosecuting such actions.” The motion was denied by the Appellate Division. A motion of the plaintiff “that this Appellate Division impose double costs on the defendant in this action, for the reason that his objections to rulings of the court are frivolous and intended for delay,” was allowed. The defendant filed in this court an appeal from these orders of the Appellate Division.
The motions were not within the jurisdiction of the Appellate Division. Its jurisdiction is limited to matters which have been reported to it by the trial court, or matters incidental to such reports, among which are included passing upon petitions to establish reports and ordering a cause to proceed as though no claim for a report had been made when the party claiming such report does not duly prosecute it. G. L. (Ter. Ed.) c. 231, §. 108. See also Buchannan v. Meisner, 279 Mass. 457, 460. The motions do not fall within any of these categories. Reports, as
The Appellate Division should have declined to entertain the motions, or, at most, should have dismissed them. In effect, though not in terms, it dismissed the motion to “stay, abate, or discontinue proceedings.” This motion had no standing in the Appellate Division and has no better standing in this court on appeal. See Commonwealth v. New York Central & Hudson River Railroad, 206 Mass. 417, 427. Since this motion was effectively disposed of by the Appellate Division it is necessary here only to dismiss the appeal, as is done where the Appellate Division has jurisdiction but an appeal to this court does not lie. See Hammond v. Boston Terminal Co. 295 Mass. 566; Robinson v. Wm. Brown & Sons Co. 301 Mass. 316, and cases cited.
The motion for double costs, from the allowance of which the defendant appealed to this court, must be dealt with somewhat differently. The Appellate Division by allowing the motion impliedly ruled that it had jurisdiction to do so. For reasons already stated it had no such jurisdiction. It has been said, however, of such a situation that the case has no “standing in court; for the court first resorted to
So ordered.