Foley v. Hennigar

1 Mass. App. Dec. 170

• Court: United States District Court
• Decided: December 15, 1941
• Docket: No. 3022
• Status: Published

Opinion

JONES, P.J.

(Sullivan, J. & Pettingell, J.)—This is before us on plaintiff’s motion to dismiss the action because the same has remained upon the docket without proceedings had by either party for over two years; also there is a motion to dismiss because of failure of the defendant to file a petition for the establishment of a report under Rule XXX of the Rules of the District Courts, 1932 Ed.

There are also two motions of defendant; one for allowance of time to file a petition for the establishment of a report, and the other is a motion for a new trial.

As to the two motions filed by the plaintiff, this court is without jurisdiction to hear and decide these motions and is returning the motions to the court of origin for action as below stated. The reason for this is found in Rule XXVIII of said Rules, which provides in the ninth paragraph thereon, on page 30 that,— “until a report is allowed ... all motions and other interlocutory matters shall be heard by the justice of the court in which the action is brought.” Therefore, these motions are returned to the court of origin, without other action on the part of this Division.

The latter part of said Rule XXVIII also provides for a dif' ferent procedure if the report is allowed or disallowed, and after a petition to establish a report has been , filed. None of these provisions are yet in force.

The two motions of the defendant, also before us, are in the same class as are the plaintiff’s motions and are likewise returned to the court of origin for action.

All of the motions above referred to are therefore ordered to be returned to the court of origin for further action in the last mentioned court.