Nogueira v. Howe

7 Mass. App. Div. 413

• Court: Massachusetts District Court, Appellate Division
• Decided: November 3, 1942
• Status: Published

Opinion

Briggs, J.

These are two actions of tort arising out of a collision of motor vehicles, which were tried together. The first is an action for personal injuries and property damage, and the second is for personal injuries. Each alleges that the negligence of the defendant caused the injury or damage for which recovery is sought. The answer is a general denial and averment of contributory negligence in each case.

The Court found for the plaintiff in each case, and the defendant, claiming to be aggrieved by the finding, and the rulings and refusal to rule as requested, claimed a report to this Division.

The report in this case was allowed on August 25, 1942 and the case appeared on the trial list for argument in this Division on October 7,1942. Upon call there, when the case "was reached, no one appeared for the defendant and no brief had been filed on his behalf.

Rule XXXII of the Rules of the District Courts provides that “If a party whose claim for a report has been allowed or established shall not prosecute the same promptly by preparing the necessary papers or otherwise as herein (in said Rules) provided, the Appellate Division may upon motion or of its own initiative, order the cause to proceed ... or take such action as justice may require”.

Under Rule XXXI of the aforesaid rules, the defendant, as appealing party, should have filed four copies of his brief. If he had done this his appeal would have been held in this Court. But in the absence of any brief for the defendant and his failure to appear the action applicable to the situation is to enter a non suit.

As the Superior Court may provide a rule for the dismissal of cases for want of prosecution, Cheney vs. Boston & Maine, 246 Mass. 502, so may this division. See also Bishop vs. Hannigan, 5 Mass. App. Div. Rep. 394; Westland Housing Corp. v. Scott, 3 Mass. App. Div. Rep. 355.

Notwithstanding this disposition of the case we have examined the warranted findings of the Court, based upon conflicting evidence. The accident occurred at an intersection and the Court found that the defendant was negligent and that the plaintiffs were in the exercise of due care. We cannot disturb this finding. No error appears in the rulings.

The entry will be

Report dismissed.