381 Mass. 714 | Mass. | 1980
On alternative counts for breach of contract and for the tort of negligence, the plaintiff subscriber sued the defendant telephone company in Superior Court, claiming damages for an error in the publication of an advertisement of the plaintiff’s business in the “yellow pages” of the 1977 telephone directory for the Southbridge area. The plaintiff demanded trial by jury. Because there appeared to be no reasonable likelihood that recovery would exceed the amount then specified in G. L. c. 231, § 102C, the action was ordered transferred pursuant to that statute and Rule 29 of the Superior Court (1974), to the District Court of the First Southern Worcester Division. On bench trial there, the judge found for the plaintiff on both counts with dam
From the decision of the Appellate Division, the plaintiff purported to appeal to this court under G. L. c. 231, § 109. But § 109 envisages appeal from a final decision. The decision of the Appellate Division was interlocutory. A final judgment, subject to appeal of right to this court, would arise in this case only after retransfer of the action to the Superior Court pursuant to G. L. c. 231, § 102C, and completion of the proceedings there (the judgment of the District Court, entered after decision of the Appellate Division, being available in proper circumstances
The requirement in cases like the present of recourse to the Superior Court as a condition of appeal to this court, results from the fact that jury trial is not now available in civil actions in the District Courts.
Appeal dismissed.
Cf. Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, 508 (1968); Harrison v. Textron, Inc., 367 Mass. 540, 552-553 (1975).
Except for trial by jury-of-six by consent of the parties in the District Court, Central Worcester Division, and Central Northern Essex Division. G. L. c. 218, §§ 19A, 19B.