Guido v. Gielda

29 Mass. App. Dec. 23

Opinion

Garvey, P. J.

After a trial, in this action of tort, there was a finding for the defendant, notice of which was received by counsel for the plaintiffs on May 24, 1963. Claiming to be aggrieved, a request for a report was duly filed by the plaintiffs. The draft report was not filed, however, until June 4, 1963, the eleventh day after receipt of notice of the finding. Defendant’s motion to dismiss the draft report based on the late filing was allowed. To the allowance of this motion the plaintiffs claimed the present report. There was no error.

Rule 28 of the Rules of the District Courts requires the filing of the draft report within ten days of receipt of the notice of finding.

Provisions of statutes and rules of court regulating appellate procedure are construed strictly, Framigletti v. Neviackas, 324 Mass. 70, 72, and failure to comply is fatal to the right to prosecute an appeal. Murphy v. William C. Barry, Inc., 295 Mass. 94, 97; Adams v. Dykstra, 334 Mass. 708. Cases upholding the dismissal or refusal by appellate .courts to entertain appeals where there has been a failure to comply with the rules of court are collected in an opinion by this court in Allston Supply Co., Inc. v. Interstate Plumbing & Heating Corp., District Court of Springfield #156650. — 25 Mass. Appel. Dec. 139.

“In computing any period of time less than a week, Sunday is to be excluded; .... in computing any period of time of a week or more, Sunday is to be included.”

Stevenson v. Donnelly, 221 Mass. 161, 163. Holidays are on the same footing as Sundays. Marcellino, petr., 271 Mass. 323. The report is to be dismissed.

J. Edward Fitzgerald, of Springfield, for the Plaintiffs. Charles W. Brids, of Springfield, for the defendant.