DiGiacomo v. Balboni

Massachusetts Appeals Court

DiGiacomo v. Balboni

327 N.E.2d 900, 3 Mass. App. Ct. 749

CourtMassachusetts Appeals Court

DecidedMay 14, 1975

StatusPublished

Cited by1 cases

This text of 327 N.E.2d 900 (DiGiacomo v. Balboni) 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

DiGiacomo v. Balboni, 327 N.E.2d 900, 3 Mass. App. Ct. 749 (Mass. Ct. App. 1975).

Pincite

Opinion

The Superior Court judge from whose order judgment the defendant appeals (see Mass. R. Civ. P. 1A, subpar. 7, 365 Mass. 731, [1974]) correctly ruled that the action was not commenced within six months after the defendant had given bond (see G. L. c. 197, § 1, as in effect prior to St. 1969, c. 493, § 1) for the reasons stated in his memorandum and order. See Smith v. Greeley, 291 Mass. 271, 273 (1935); Moriarty v. King, 317 Mass. 210, 214 (1944), and cases cited; Lapp Insulator Co. Inc. v. Boston & Maine R.R. 330 Mass. 205, 213 (1953). We do not consider the other defenses argued in the defendant’s brief, as she failed to assert them before the auditor to whom the case was referred and whose findings of fact were to be final, to preserve them by filing objections to the auditor’s report (Kass v. Todd, 362 Mass. 169, 173 [1972]) or a motion to recommit (Sheppard Envelope Co. v. Arcade Malleable Iron Co. 335 Mass. 180, 184 [1956]), or otherwise to bring them to the attention of the Superior Court (Milton v. Civil Serv. Commn. 365 Mass. 368, 379 [1974]).

Judgment for the plaintiff.

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The Superior Court judge from whose order judgment the defendant appeals (see Mass. R. Civ. P. 1A, subpar. 7, 365 Mass. 731, [1974]) correctly ruled that the action was not commenced within six months after the defendant had given bond (see G. L. c. 197, § 1, as in effect prior to St. 1969, c. 493, § 1) for the reasons stated in his memorandum and order. See Smith v. Greeley, 291 Mass. 271, 273 (1935); Moriarty v. King, 317 Mass. 210, 214 (1944), and cases cited; Lapp Insulator Co. Inc. v. Boston & Maine R.R. 330 Mass. 205, 213 (1953). We do not consider the other defenses argued in the defendant’s brief, as she failed to assert them before the auditor to whom the case was referred and whose findings of fact were to be final, to preserve them by filing objections to the auditor’s report (Kass v. Todd, 362 Mass. 169, 173 [1972]) or a motion to recommit (Sheppard Envelope Co. v. Arcade Malleable Iron Co. 335 Mass. 180, 184 [1956]), or otherwise to bring them to the attention of the Superior Court (Milton v. Civil Serv. Commn. 365 Mass. 368, 379 [1974]).

Judgment for the plaintiff.

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Bluebook (online)

327 N.E.2d 900, 3 Mass. App. Ct. 749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/digiacomo-v-balboni-massappct-1975.

Opinion

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