Gordon v. Pantos Canvas Corp.

1983 Mass. App. Div. 26, 4 Mass. Supp. 259, 1983 Mass. App. Div. LEXIS 4

• Court: Massachusetts District Court, Appellate Division
• Decided: February 10, 1983
• Status: Published

Opinion

Forte, J.

This appeal is before the Appellate Division on a report from the Second Eastern Middlesex Division.

At the close of the evidence at trial, the defendant filed requests, for rulings which the court denied in part. On April 16, 1981, the court's findings were filed and on April 21, judgment was entered in the docket. On April 30, 1981, the defendant timely filed a claim of report and a motion for a new trial. The denial of the motion for a new trial was docketed on May 15, 1981. On May 26, 1981, the defendant’s draft report was filed.

Dist./Mun. R. Civ. P., Rule 64(c)(ii) requires draft reports to be filed within ten (10) days after entry of judgment. Wing v. Liziewski, 59 Mass. App. Dec. 30 (1976). However, the filing of a motion for a new trial tolls the time for filing of the draft report. Dist./Mun. R. Div. P. Rule 64(c)(iii) and the full time (ten days) for filing draft reports "shall commence to run and shall be computed from the entry of any of the following orders made upon a timely motion under such rules: ... (3) denying a motion for a new trial under Rule 59.” Rule 64(c)(iii).

When the denial of the motion for a new trial was docketed on May 15,1981, the ten days to file a draft report began to toll. The draft report was not filed until the eleventh day thereafter and no motion was filed or allowed to extend the time for filing.

The draft report not having been filed timely is to be dismissed. Locke v. Slater, 387 Mass. 682 (1982); Wing v. Liziewski, supra.

Report dimissed.