Fitzgerald v. Spear

Massachusetts Supreme Judicial Court

Fitzgerald v. Spear

86 N.E.2d 522, 324 Mass. 755, 1949 Mass. LEXIS 684

CourtMassachusetts Supreme Judicial Court

DecidedJune 2, 1949

StatusPublished

This text of 86 N.E.2d 522 (Fitzgerald v. Spear) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fitzgerald v. Spear, 86 N.E.2d 522, 324 Mass. 755, 1949 Mass. LEXIS 684 (Mass. 1949).

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Opinion

Appeal dismissed. In this action of summary process judgment was rendered in the District Court against the defendant, hereinafter called the petitioner. Thereafter he brought a petition in that court to vacate judgment, which was denied, and judgment on the petition was entered accordingly, from which the petitioner appealed to the Superior Court. See Donnelly v. Montague, 305 Mass. 14, 16. G. L. (Ter. Ed.) c. 231, § 97. In the Superior Court the record discloses merely that the petition was “denied after hearing” and that the petitioner's requests for rulings and findings of fact were denied. The petitioner appealed from the denial of his petition (which we treat as an order for judgment) and from the denial of his requests. The requests do not appear in the record — and properly so — since they are not part of the record on appeal. Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 717. The appeal is not rightly here. The statute governing appeals in actions at law is G. L. (Ter. Ed.) c. 231, § 96. The order appealed from, although “ decisive of the case,” was not “founded upon matter of law apparent on the record” within the meaning of these words in § 96. Styrnbrough v. Cambridge Savings Bank, 299 Mass. 22. Obviously the order was not within any other class of orders appealable under that section.

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Appeal dismissed. In this action of summary process judgment was rendered in the District Court against the defendant, hereinafter called the petitioner. Thereafter he brought a petition in that court to vacate judgment, which was denied, and judgment on the petition was entered accordingly, from which the petitioner appealed to the Superior Court. See Donnelly v. Montague, 305 Mass. 14, 16. G. L. (Ter. Ed.) c. 231, § 97. In the Superior Court the record discloses merely that the petition was “denied after hearing” and that the petitioner's requests for rulings and findings of fact were denied. The petitioner appealed from the denial of his petition (which we treat as an order for judgment) and from the denial of his requests. The requests do not appear in the record — and properly so — since they are not part of the record on appeal. Pequod Realty Corp. v. Jeffries, 314 Mass. 713, 717. The appeal is not rightly here. The statute governing appeals in actions at law is G. L. (Ter. Ed.) c. 231, § 96. The order appealed from, although “ decisive of the case,” was not “founded upon matter of law apparent on the record” within the meaning of these words in § 96. Styrnbrough v. Cambridge Savings Bank, 299 Mass. 22. Obviously the order was not within any other class of orders appealable under that section.

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Bluebook (online)

86 N.E.2d 522, 324 Mass. 755, 1949 Mass. LEXIS 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzgerald-v-spear-mass-1949.

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