16 Mass. App. Ct. 629 | Mass. App. Ct. | 1983
In an attempt to have an appellate court review an interlocutory order, the plaintiff moved for entry of a final judgment. A Superior Court judge denied the motion, and the plaintiff has appealed from the judge’s decision. We summarize from the record the procedural history of the action.
The plaintiff, a subcontractor engaged in the construction of housing units in Greenfield, brought an action for money owed to him by the general contractor on the proj
Because “[t]he legislative purpose is clear that an arbitration proceeding should not be delayed by an appeal,” School Comm. of Agawam v. Agawam Educ. Assn., 371 Mass. 845, 847 (1977), the order of the judge was not a final judgment subject to appeal, but was an interlocutory order. George A. Fuller Co. v. Nelson J. Sanford & Sons, 5 Mass. App. Ct. 802 (1977). Also see G. L. c. 150C, § 16. Faced with the judge’s order with which it disagreed, the plaintiff did nothing for over three years. Because of its inactivity the plaintiff ran afoul of Mass.B.Civ.P. 41(b)(1), 365 Mass. 804 (1974), and a notice of involuntary dismissal for lack of prosecution was filed on April 21, 1978. The notice stated that the action would be dismissed on April 21, 1979, “unless before that day the action has been tried, heard on the merits, otherwise disposed of, or unless the Court with or without notice shall otherwise order.” An examination of the docket shows that no order for judgment issued, nor was judgment entered on April 21, 1979, or any other date.
The order refusing to enter a judgment dismissing the action is reversed and a judgment dismissing the plaintiff’s action is to enter.
So ordered.
In these circumstances the stay of the proceedings does not prevent Mass.R.Civ.P. 41(b)(1) from operating. The plaintiff after its long period of inactivity had another year from the time of the notice of dismissal to report the commencement of arbitration proceedings. It, however, did nothing and its inaction does not prevent the machinery contemplated by Mass.R.Civ.P. 41(b)(1) from operating; else there would be no way ever to clear the docket in a case such as this.