7 Mass. App. Ct. 864 | Mass. App. Ct. | 1979
The plaintiffs here are appealing from an order of a Superior Court judge dismissing their appeals from the allowance of the defendant’s motions for directed verdicts in actions for damages caused by the explosion of a stove which occurred at the corporate plaintiffs premises. We conclude that the plaintiffs’ original appeals were properly dismissed. 1. The bills of exceptions filed by the plaintiffs on May 16, 1974, were treated as timely notices of appeal when the new rules of civil procedure went into effect on July 1, 1974. Mass.R.Civ.P. 1A, par. 7, 365 Mass. 732 (1974). In lieu of the record on appeal Mass.R.A.P. 8(d), 365 Mass. 851 (1974), permits the parties to "prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the lower court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented.” If approved by the lower court, the agreed statement is retained in the lower court as the record on appeal. On July 22, 1974, the plaintiffs filed their assented to "Substituted Consolidated Bill of Exceptions and Statement of Evidence.” It was approved on that date by the judge as an agreed statement of the case under Mass.R.A.P. 8(d). The plaintiffs were then required to docket their appeal by paying the required docket fee to the appellate court "[wjithin 10 days ... of approval by the lower court of an agreed statement, pursuant to Rule 8(d).” Mass.R.A.P. 10(a), 365 Mass. 853 (1974). The plaintiffs failed to take the steps required of them to docket their appeals in this court. The appeals have never been docketed, and the docket fees have never been paid to the clerk of this court. On March 31, 1977, the judge ordered the dismissal of the plaintiffs’ appeals. Failure properly to docket an appeal in accordance with Mass.R.A.P. 10(a) is ground for dismissal of an appeal. Mass.R.A.P. 10(c), as amended, 367 Mass. 919 (1975). Westinghouse Elec. Supply Co. v. Healy Corp., 5 Mass. App. Ct. 43, 57-58 (1977). "[W]e perceive no intention on the part of the draftsmen of our rules to detract from the significance of timely docketing. Mass.R.A.P. 10(a) follows Fed.R.A.P. 12(a) in forbidding late docketing except by order of the appellate court made upon motion for cause shown.” Id. at 58. As the plaintiffs have failed to docket their appeals within the time prescribed by Mass.R.A.P. 10(a) and have not shown good cause for failing to do so, the defendant’s motion to dismiss the appeals pursuant to Mass.R.A.P. 10(c) was properly allowed. Moreover, even though the rules do not
So ordered.