Fred C. Church & Co. v. Pacy

46 Mass. App. Dec. 13

Opinion

Per Curiam:

This appeal is from a ruling of an interlocutory matter (a motion to dismiss) in a case not ripe for judgment.

The report does not clearly appear to be the report of the trial judge. Patrick v. Mikolaitis, 22 Mass. App. Dec. 167; Pokrant v. Horrigan, 20 Mass. App. Dec. 1; Krock v. Consolidated Mines and Power Co., 286 Mass. 177.

The motion to dismiss should be treated as a demurrer. Carmel Credit Union v. Lesser, 344 Mass. 623.

As a demurrer, its grounds would be that the matters contained in the declaration are insufficient in law to enable the plaintiff to maintain its action. GLL. c. 231, § 18.

The case is remanded without prejudice to the District Court of Lowell for a hearing on the demurrer and, if necessary, a trial on the merits.