Kelly v. Kelly, 3 Mass. App. Ct. 702

Kelly v. Kelly

3 Mass. App. Ct. 702 | Mass. App. Ct. | 1975

This is an appeal from a final decree dismissing the plaintiff’s bill in equity filed in Superior Court. The case had been referred to a master. The master reported that the plaintiff repeatedly failed to appear without adequate cause at the hearings scheduled before him, although the hearings were continued from time to time either at the request of counsel for the plaintiff or to afford the plaintiff additional opportunity to appear. The master purported to enter a nonsuit, which we assume was treated as a recommendation that the bill be dismissed for want of prosecution. Cf. Fratantonio v. Atlantic Refining Co. 297 Mass. 21, 22 (1937). The master’s report was confirmed and no appeal was taken *703from the decree confirming the report. “Thus the findings of fact made by the master become conclusive between the parties.” Samuel & Nathan E. Goldstein, Inc. v. Dietz, 284 Mass. 548, 549 (1933). Perry v. Oliver, 317 Mass. 538, at 538 (1945). Blanchette v. Blanchette, 362 Mass. 518, 519 (1972). The plaintiff filed in the Superior Court a “Motion to Remove Non-suit.” Although the court did not enter a “nonsuit,” we regard one as having been impliedly made upon confirmation of the master’s report. Cf. Ryan v. Brennan, 1 Mass. App. Ct. 469, 473 (1973). The plaintiff’s motion was denied and the final decree dismissing the bill was entered. The only question presented by this appeal from the final decree is whether the decree is supported by the facts set forth in the master’s report. See Samuel & Nathan E. Goldstein, Inc. v. Dietz, supra, at 549. See also Pevey v. McGrath, 243 Mass. 451, 454 (1923). The plaintiff’s failure to prosecute his action is amply demonstrated in the master’s report, and there was no error in the denial of the “Motion to Remove Non-suit” or in the entry of the final decree dismissing the bill. Cf. Fratantonio v. Atlantic Refining Co., supra, at 23-24.

Gilbert E. Poisson for the plaintiff. Francis T. Meagher for the defendant.

Decree affirmed.