5 Mass. App. Ct. 818 | Mass. App. Ct. | 1977
Nothing appears in the plaintiff’s appeal from the order denying its motion to determine whether the defendant commission had complied with the writ of mandamus previously issued against it. In the first place, the judge was not required to entertain the motion for the reason that it was grounded on factual allegations unverified by affidavit, and not apparent from the record and files or agreed to by written stipulation. Rule 9 of the Superior Court (1974). See H. Piken & Co. Inc. v. Planet Constr. Corp. 3 Mass. App. Ct. 246, 249 (1975). If, on the other hand, the judge did grant a hearing on the motion, and the commission makes the unsupported assertion that he did, the record does not disclose what transpired at that hearing or the reason for the judge’s action. For all that appears, the judge may have denied the motion because he was satisfied that the commission had sufficiently complied with the writ. That conclusion is not shown to have been erroneous. Contrast Gilbert v. Johnson, 490 F. 2d 827, 828-830 (5th Cir. 1974). The commission represented that the decision ren
Order affirmed.