Cook v. Kozlowski

222 N.E.2d 881, 351 Mass. 708

Opinion

This is a petition filed in 1963 to establish a report in an action brought against the Kozlowskis and tried in a District Court. The Appellate Division dismissed the petition. So far as the draft report attempts to present the issue of the propriety of evidential rulings, there is no allegation of compliance with the fourth paragraph of Rule 27 of the Rules of the District Courts (1952), since republished, effective January 1, 1965. The docket entries reveal no such compliance. The draft report attempts to show inconsistency between (a) rulings by the trial judge that the evidence warranted findings for the Kozlowskis, and (b) his actual finding for Cook, which was warranted on evidence in part oral. Not only was there no necessary inconsistency (see Godfrey v. Caswell, 321 Mass. 161,162), but, if one had existed, the proper “remedy is not a report but a motion to correct the inconsistency or a motion for a new trial.” See Vieira v. Balsamo, 328 Mass. 37, 39. The petition does not contain an unequivocal allegation, supported by an unequivocal affidavit, that the draft report conforms to the truth. See Lasell v. Director of the Div. of Employment Security, 325 Mass. 23, 25-26. It also does not reveal any meritorious ground for reversal.

Order of the Appellate Division affirmed.