Conway v. Murphy

192 N.E. 149, 287 Mass. 536, 1934 Mass. LEXIS 1199

Opinion

Rugg, C.J.

This is a petition to establish a report respecting a trial in a district court. A finding in favor of the plaintiff was filed on February 25, 1933, and notice thereof was sent. The defendant states in his brief that he received the notice on February 27, 1933. He filed a draft report on March 8, 1933. That report on motion was dismissed by the trial judge. By decision of the Appellate Division the report was dismissed for failure to comply with Rule 27 of the District Courts (1932). So far as here material that rule provides that “written request for a report to the Appellate Division shall be filed with the clerk within five days after notice of the final finding in any cause.”

Promulgation of the rule was within the power conferred by G. L. (Ter. Ed.) c. 218, § 43. The defendant failed to comply with it. Massachusetts Drug Co. v. Bencks, 256 Mass. 535. The filing of the draft report was dependent for its validity upon the precedent filing of a request for report. See Krock v. Consolidated Mines & Power Co. Ltd. 286 Mass. 177. It is not necessary to determine whether the filing of a draft report within the five days limited by the rule would be sufficient because it was not so filed. See Lawrence v. Board of Registration in Medi cine, 239 Mass. 424, 427. There is nothing in St. 1933, c. 255, embodying among other matters the substance of the rule, which justifies the conclusion that the rule was not valid before its enactment.

Order of Appellate Division affirmed.