Tranfaglia v. Security National Bank

50 Mass. App. Dec. 85 | Mass. Dist. Ct., App. Div. | 1973

Mason, J.

The issue presented to this Division is whether the draft report was properly dismissed for the reason that the trial judge’s special findings of fact were attached rather than inserted within the body thereof, as provided in the draft report model contained in Buie 28 of the Buies of the District Courts, as amended.

G.L. c. 231, § 108 provides that any party to a cause brought in the district court, aggrieved by any ruling on a matter of law by a single justice, may, as of right, have the ruling reported for determination by the Appellate Division. Where the aggrieved party has a right to a report on questions of law, it would appear that there is a corresponding duty on the courts to see that the right is fairly safeguarded. Burns v. Sawyer, 34 Mass. App. Dec. 67, 69.

Buie 28 provides that draft reports “shall generally as fully as may be” follow the model as printed. Draft reports should conform as nearly as possible to the model in order that a degree of uniformity be obtained in presenting the matters before this court. Although the Buie places the burden of preparing a draft report upon the requesting party, the report is nevertheless that of the justice who heard the case. Perry v. Hanover, 314 Mass. 167, 168, 169.

The trial justice may order the party requesting the report to prepare a copy as settled in form similar to the draft report model and submit the same to him for formal allowance within such time as he may fix, and failure to comply with this order shall be sufficient ground for disallowing the claim for report.

Gerald L. Goodstein for Plaintiff No Argument or Brief submitted for Defendant

The narrow issue before us of attachment or insertion does not enable us to determine whether that right to have a ruling reported has been fairly safeguarded as we are unable to ascertain that all essential elements were included in the draft report.

Inasmuch as the trial judge has the power to. amend, alter or change the draft report before it is settled as his report, we feel that justice will'best be served by our recommitting the case to the trial judge for the purpose of ordering that the draft report be amended by inserting the special findings therein and such óthér action as may be consistent with the provisions of Rule 28.

Order of dismissal vacated.