Carlsberg Printers, Inc. v. Shields

56 Mass. App. Dec. 131

Opinion

Flaschner, J.

This is a petition to establish a report filed by the defendant against whom the trial justice made a finding for $559. While the petition recites that the defendant timely filed a request for a report and a draft report, these documents are not included in the petition.

"Rule 30 requires a copy of the draft report sought to be established to be set forth in the petition." The Connecticut Bank and Trust Co. v. Phaneuf, 37 Mass. App. Dec. 196, 199 (1967). Since the only draft report we may establish pursuant to the petition must-be based on the one filed by the petitioner-appellant, Tourles, Petitioner, 341 Mass. 305, 307 (1960), Graustein, Petitioner. 304 Mass. 679 (1939), Williams v. Shagoury, 33 Mass. App. Dec. 182 (1966), and Sea Street Auto Body, Inc. v. Mullis, 26 Legalite 68 (1975), the omission of the draft report from the petition to establish a report is necessarily fatal.

Moreover, it appears from the record (the docket entries) that at the time the claim of report and draft report were filed, the defendant had filed no request or requests for rulings. Since the claim of report, therefore, presented no question of law, its dismissal by the trial justice was warranted. Parkway Imports, Inc. v. Askinos, 37 Mass. App. Dec. 200 (1967).

Defendant did not before the beginning of the closing argument, seek special leave to present requests later. See: District Court Rule 27, now Rule 64 (b), Dist./Mun.Cts.R.Civ.P. This was not done until after the filing of the claim of report and draft report. The trial justice’s denial of defendant’s motion to file requests for rulings late was clearly warranted. Petition denied.