Ransone v. Briggs

44 Mass. App. Dec. 16

• Court: Massachusetts District Court, Appellate Division
• Decided: February 24, 1970
• Docket: No. 7254; No. 5097
• Status: Published

Opinion

Connolly, J.

The defendant, who lost her case in the District Court, comes to this Division claiming to be aggrieved because the trial judge denied her motion to he allowed to file “nu/nc pro tune” a draft report in the case after the proscribed time for filing such a report had elapsed.

We do not consider the denial of the motion error. The trial judge had no authority to grant it. Dias v. Fairhaven Institution for Savings, 22 Mass. App. Dec. 116.

The circumstances that led up to the filing of the motion, however, do concern us and if the statements of the attorney for the defendant are true, then in the interest of justice, we feel impelled to intervene.

These statements were to the effect that he had seasonably sent a copy of a draft report in the case to the court with copies to the trial justice and opposing counsel. There was some evidence (a telephone conversation with a young lady in the Clerk’s Office in which she acknowledged receipt of the draft report) of its reception in the Clerk’s Office but for some reason, the draft report was not officially filed and docketed. At any rate, at a hearing set up on the draft report, the trial judge refused to take any action on it for the reason that there was no draft report on file.

The motion to file a draft report “nunc pro tune” referred to above was thereupon made and denied.

If what the attorney for the defendant states is true, it would be an injustice to his client to deprive her of a right to appeal because of an error on the part of the staff in the Clerk’s Office. If such an error did occur, the court has the power to correct its records and show by them the seaosnable filing of the draft report. Allen v. Moushegian, 320 Mass. 746, 755. Green v. Clerk of the Municipal Court, 321 Mass. 487, 491.

We, therefore, order the case remanded to the First District Court of Northern Middlesex with instructions to the trial judge to determine whether the attorney for the defendant did, in fact, seasonably file a copy of a draft report of the case in the Clerk’s Office of his court. If he finds this to be so, then the records of the court are to be corrected so as to reflect the fact of seasonable filing and the appeal proceed in normal fashion starting with a hearing on the draft report.

If the trial judge should determine that the draft report was not seasonably filed, then the present report is to be dismissed.

Frank J. Opie for the plaintiff. Chas. Corkin for the defendant.

There was no error in the denial of the motion to be permitted to file the draft report “nunc pro tune” after the proscribed time for filing had elapsed.