Ahern v. Towle

6 Mass. App. Div. 34

Opinion

Putnam, G. J.

This is a report of the action of a judge in denying a motion by the defendant for the dismissal of a report to this division and for the entry of judgment for the defendant.

The report, the dismissal of which is now sought, was signed and filed in the clerk’s office on July 21, 1939, by a judge before whom the case was tried on the merits and who found for the defendant. To this procedure the defendant made no objection. Thereafter both parties filed briefs and, on October 2, 1939, made arguments thereon before this division, also without any protest or objection by the defendant. This division, on March 29, 1940, ordered the entry of a judgment for the plaintiff. The defendant took steps to perfect an appeal to the Supreme Judicial Court and on May 1, 1940, deposited with the clerk the estimated cost of preparing the record. On May 9, 1940, the defendant filed the present motion.

The first ground of the motion is that a paper filed by the plaintiff on June 23, 1939, entitled “Request for Report” was defective because it did not comply with that part of Rule 28 of this court (1932, which is unchanged in the 1940 revision) which provides that “A request for a report to the Appellate Division shall contain a clear and concise statement of the ruling upon which a hearing is requested, sufficiently full and accurate for identification.” Setting to one side, without decision, the question whether the defendant is not too late in now trying to raise this point, (Commissioner of Banks v. T. C. Lee & Co. Inc., 291 Mass. 191) we are of opinion that the description given of this “Request for Report” in the present report shows plainly that it sufficiently complied with the rule. It sets forth the requests for rulings and the trial judge’s action thereon. The judge who made the present report correctly dealt with the motion so far as it rested on this ground.

The second ground is that the trial judge granted, ex. parte, a motion by the plaintiff for an extension of time within which to file a draft report. Rule 29 of this court (1932) as amended on June 24, 1935, and as now appearing provided that “The party requesting a report shall file a draft thereof within five days after notice of the finding or decision in the cause unless further time is allowed by the court upon application made within such five days.” Said motion was granted within the five days. The defendant complains that she was not given an opportunity to oppose it. She was not entitled to it. Kennedy v. Hub Manufacturing Co., 221 Mass. 136, 139.

The third ground is that the case had gone to judgment before the trial judge filed his report on July 21, 1939, because, as it is said, the request for report was ineffective, and the draft report was a nullity because of the ex parte extension of time above described. What we have said heretofore sufficiently disposes of this contention.

The judge was right in denying this motion for dismissal of the report and for the entry of judgment for the defendant, and his denial thereof is

Affirmed.