5 Mass. App. Ct. 806 | Mass. App. Ct. | 1977
1. The record (which does not include the letter of May 9, 1975, reproduced in the appendix) does not support the defendants’ contention that the original writ was entered late in the District Court. If the defendants ever did have any point under G. L. c. 231, § 13 (as in effect prior to St. 1975, c. 377, § 75), the point was waived by their answering and going to hearing on the motions for summary judgment. Compare Clark v. Montague, 1 Gray 446, 447-450 (1854); Byron v. Concord Natl. Bank, 299 Mass. 438, 443 (1938). 2. No abuse of discretion is discernible in the allowance of the late filing of the plaintiffs’ answer to the defendants’ counterclaim. Mass.R.Civ.P. 6(b)(2), 365 Mass. 747 (1974). Giacobbe v. First Coolidge Corp. 367 Mass. 309, 315-316 (1975). 3. There is nothing in any of the affidavits submitted by the defendants which disputes the truth of the statement in the affidavit of counsel for the plaintiffs that the documents attached to his affidavit are “copies of certified copies” of papers on file in or issued by “the Superior Court in and for the County of Oxford, State of Maine.” See the second sentence of Mass.R.Civ.P. 56(e), 365 Mass. 825 (1974). Whether any of those copies is presently in such form as to be admissible in evidence at any trial of this matter (see 28 U.S.C. § 1738 [1970 ed.]; Mass.R.Civ.P. 44[a][l], 365 Mass. 807 [1974]) is beside the point. 4. It was error to allow (a) the plaintiffs’ motion for summary judgment with respect to the claims asserted against them in the defendants’ counterclaim and (b) the motions of the third-party defendants with respect to the claims asserted against them in the third-party complaints. If the plaintiffs wished to defeat the counterclaim on the ground of res judicata (see Wright Mach. Corp. v. Seaman-Andwall Corp. 364 Mass. 683, 688-689, 691 [1974]), or if the third-party defendants wished to defeat the third-party com
So ordered.