Cape Ann Savings Bank v. Balzarini

Massachusetts Appeals Court

Cape Ann Savings Bank v. Balzarini

319 N.E.2d 454, 2 Mass. App. Ct. 891, 1974 Mass. App. LEXIS 835

DecidedNovember 19, 1974

StatusPublished

This text of 319 N.E.2d 454 (Cape Ann Savings Bank v. Balzarini) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cape Ann Savings Bank v. Balzarini, 319 N.E.2d 454, 2 Mass. App. Ct. 891, 1974 Mass. App. LEXIS 835 (Mass. Ct. App. 1974).

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Opinion

The plaintiff brought this bill of interpleader in the Superior Court to determine the disposition of the excess proceeds from the foreclosure sale of real estate under a mortgage given to the plaintiff by the defendants Balzarini. The defendant Lewis was one of nine named as claimants possibly entitled to share in the distribution of those proceeds. An interlocutory decree was entered taking the allegations of the bill as confessed as against Lewis for his failure to appear at the time set for trial. A final decree was entered [892]*892which provided for the distribution of the proceeds to other claimants and dismissed Lewis’ claim. Lewis appealed from the final decree and filed a request for a report of material facts. G. L. c. 214, § 23, as appearing in St. 1947, c. 365, § 2. The court refused to make such a report, and Lewis claimed an appeal from such refusal. Such a refusal was neither an interlocutory nor a final decree, and no appeal lay from it. Carilli v. Hersey, 303 Mass. 82, 87 (1939). Bolster v. Attorney Gen. 306 Mass. 387, 388-389 (1940). There is no merit to Lewis’ only other contention, that the judge “abused . . . [his] discretion by decreeing awards to parties in default and to their attorneys as shown by the docket entries.” The appeal from the refusal to make a report of material facts is dismissed. The final decree is affirmed. So ordered.

The case was submitted on briefs. Merrill B. Nearis for Bruce Lewis. Peter J. Cahill for Cape Ann Savings Bank.

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The plaintiff brought this bill of interpleader in the Superior Court to determine the disposition of the excess proceeds from the foreclosure sale of real estate under a mortgage given to the plaintiff by the defendants Balzarini. The defendant Lewis was one of nine named as claimants possibly entitled to share in the distribution of those proceeds. An interlocutory decree was entered taking the allegations of the bill as confessed as against Lewis for his failure to appear at the time set for trial. A final decree was entered [892]*892which provided for the distribution of the proceeds to other claimants and dismissed Lewis’ claim. Lewis appealed from the final decree and filed a request for a report of material facts. G. L. c. 214, § 23, as appearing in St. 1947, c. 365, § 2. The court refused to make such a report, and Lewis claimed an appeal from such refusal. Such a refusal was neither an interlocutory nor a final decree, and no appeal lay from it. Carilli v. Hersey, 303 Mass. 82, 87 (1939). Bolster v. Attorney Gen. 306 Mass. 387, 388-389 (1940). There is no merit to Lewis’ only other contention, that the judge “abused . . . [his] discretion by decreeing awards to parties in default and to their attorneys as shown by the docket entries.” The appeal from the refusal to make a report of material facts is dismissed. The final decree is affirmed. So ordered.

The case was submitted on briefs. Merrill B. Nearis for Bruce Lewis. Peter J. Cahill for Cape Ann Savings Bank.

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Bluebook (online)

319 N.E.2d 454, 2 Mass. App. Ct. 891, 1974 Mass. App. LEXIS 835, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cape-ann-savings-bank-v-balzarini-massappct-1974.

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