Clark v. O'Donnell-Usen Fisheries & Gloucester Seafood District Local No. 2

24 Mass. App. Dec. 21

• Court: Massachusetts District Court, Appellate Division
• Decided: May 18, 1962
• Docket: A.D. No. 5637; No. 16628
• Status: Published

Opinion

Eno, J.

This is an appeal by the plaintiff from an order of the Court allowing the defendants’ pleas in abatement.

The only reference in the report to these pleas is the following:

“At the hearing, the Court, after argument, without the introduction of evidence from either party allowed the Plea in Abatement and overruled the demurrer. The plaintiff took an exception and claims a report.”

M. B. Neariss of Gloucester, for the Plaintiff. Davis & Cahill, Segal Sc Flamm of Boston, for

We are unable to find from the report before us whether the pleas in abatement should have been overruled or sustained. The declaration and the pleas are not included in the report, so that we do not know the nature of the plaintiffs claim and the grounds of the defendants’ pleas in abatement.

Furthermore, it appears that only a discussion was held before the Court who allowed the pleas in abatement “without the introduction of evidence from either party”. Before action can be taken thereon, the pleadings and the facts should be considered by the trial judge, and in the event of an appeal to the Appellate Division all this should be included in the report.

We learn from the defendants’ brief some of the grounds for their pleas, but from the report we cannot find whether or not these were submitted to the Court.

The order of the Court allowing defendants' pleas in abatement is to be vacated and a new hearing held in accordance with this opinion.