Kipp v. O'Reilly

360 N.E.2d 907, 5 Mass. App. Ct. 795

Opinion

1. We need not decide whether there was a valid waiver of the claim of trial by jury (see Vaught Constr. Corp. v. Bertonazzi Buick Co. Inc. 371 Mass. 553, 556-558 [1976]) in the one action (No. 3550) in which there was timely compliance with the first sentence of Mass.R.Civ.P. 38(b), 365 Mass. 801 (1974). The complaint in that action has not been reproduced in the appendix (compare Haddad v. Board of Appeals of Medford, 4 Mass. App. Ct. 843 [1976]), and there is no showing that there ever was a right to trial by jury under G. L. c. 185A, § 23, as appearing in St. 1973, c. 1114, § 39; to the contrary, the judge’s description of the nature of the action indicates that there was no such right. 2. No other point has been argued within the meaning of Mass.R.A.P. 16(a) (4), as amended effective February 24,1975, 367 Mass. 921.

Judgments affirmed with double costs.