263 Mass. 425 | Mass. | 1928
These are petitions for the establishment of reports disallowed by the trial judge of the Municipal
It is provided by Rule 40 of the Rules of the Municipal Court of the City of Boston (1922) that “Whenever a claim of report shall be disallowed . . . the party seeking the same may . . . file with the clerk his petition verified by affidavit, setting forth in full his claim for such report and all facts material thereto, and shall forthwith give notice to the adverse party by delivering to him, or his attorney of record, a copy of said petition. No party shall be allowed to establish the truth of any such allegations if he has failed to comply with the requirements herein prescribed . . . This is a valid rule.
Each plaintiff filed a motion to dismiss the petition to establish the report on four different grounds. One of these grounds was “because the alleged copy of the petition and affidavit delivered to the plaintiff’s attorney does not contain a copy of any signature thereto.” Manifestly, if facts were found to support this ground, the petition for the report could not be established. Thorndike, petitioner, 244 Mass. 429. . There is nothing in the record to indicate that such facts were not found.
Rule 40 of the Municipal Court (1922), in conjunction with G. L. c. 231, § 108, means that the truth of the facts recited in the report as requested by the petition shall be passed upon finally by the Appellate Division or the judge or judges assigned therefor, and in no other way. It cannot be said that any error of law is disclosed on this record. Cohen v. Berkowitz, 215 Mass. 68. Sawsik v. Ciborowski, 256 Mass. 583.
In each case order dismissing petition to establish the truth of the draft report affirmed.