1 Mass. App. Ct. 35 | Mass. App. Ct. | 1973
The plaintiff, a company engaged in the business of writing health and accident insurance, brought this bill in equity on October 14,1971, to have two disability income policies issued by it to the defendant adjudged void and of no effect and, further, to have the court order the defendant to surrender and deliver up the policies for cancellation. The defendant filed an answer and counterclaim, in which he requested among other things that the insurance policies be declared valid and in force and that the plaintiff be ordered to pay the defendant all sums found due thereunder. After the defendant filed two notices to admit facts, both answered by the plaintiff, the defendant filed a “Motion for Partial Judgment on Undisputed Facts” moving that the first of the policies be declared valid and in force and that the plaintiff be ordered to pay all sums found due thereunder. This was accompanied by an affidavit alleging that no genuine issue of material fact existed with respect to that policy. The plaintiff filed a counter affidavit. The defendant’s motion was allowed by the Superior Court and, upon a further motion, a so-called “final decree” was entered declaring this particular policy to be valid and in force and ordering the plaintiff to pay all sums found due under it.
The plaintiff seasonably appealed from this decree.
The decree leaves undecided the question of the validity
Another question of practice should be resolved before this case is tried. That is as to whether the decree before us could properly have been entered as an interlocutory decree upon a motion filed pursuant to G. L. c. 231, § 59, as most recently amended by St. 1965, c. 491, § 1. Although this question is not before us, we feel it appropriate to state our views. Wellesley College v. Attorney General, 313 Mass. 722, 731. Prior to being amended in 1965, § 59 provided that in certain actions of contract a party who filed an affidavit that in his belief there was no genuine issue of material fact “but only questions of law in connection with all or some part of the action” (emphasis supplied) could move for an immediate entry of judgment against the other party which, if entered, could be followed by an assessment of damages. That practice still obtains on the law side of the
Appeal dismissed.