Saunders v. Apkin

Mass. Dist. Ct., App. Div.

Saunders v. Apkin

40 Mass. App. Dec. 164

CourtMassachusetts District Court, Appellate Division

DecidedJuly 1, 1968

DocketD. C. No. 10922; S. C. No. 20391

StatusPublished

This text of 40 Mass. App. Dec. 164 (Saunders v. Apkin) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Saunders v. Apkin, 40 Mass. App. Dec. 164 (Mass. Ct. App. 1968).

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Opinion

Garvey, P. J.

This is an action of contract transferred under the provisions of G.L. c. 231 § 102C to the District Court for trial. The plaintiff’s administratrix (plaintiff) seeks to [165]*165recover for personal services alleged to have been rendered by him to the defendant’s testator (defendant). The defendant denied the allegations, pleaded the statute of limitations and declared in set-off alleging that the plaintiff owed the defendant Twenty-nine hundred ($2900.) dollars for money loaned. After a trial there was a finding for the defendant and also a finding for him on his declaration in set-off. The plaintiff claiming to be aggrieved by the denial of several of his requests for rulings of law claimed a report. This report was dismissed by order of the trial judge because it was not double spaced as required by Rule 31 of the Rules of the District Courts (1965). From this order of dismissal the plaintiff claimed the report now before us. The only issue presented is the propriety of the order.

Rule 31 of the Rules of the District Courts (1965) in its applicable part reads:

“The draft report and all papers intended for use before the Appellate Division shall. . .be printed or typewritten upon opaque paper. . .The typewriting or printing including all quotations shall be double-spaced____”

We observed in part in Allston Supply Co., Inc. v. Interstate Plumbing and Heating Supply Corp., 25 Mass. App. Dec. 139 at 140-141.

“All rules of court, duly made, 'have the force of law, and are binding upon the court and the parties, and cannot be waived [166]*166or ignored. Such rules are to be respected and enforced. Flynn, Pet., 265 Mass. 310, 313.

Benjamin Apkin, of North Adams for the defendant. Joan Keyes Scott, of Williamstown for the plaintiff.

“Provisions of statutes and rules of court regulating procedure are construed strictly, Famigletti 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.”

The report is to be dismissed.

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Garvey, P. J.

This is an action of contract transferred under the provisions of G.L. c. 231 § 102C to the District Court for trial. The plaintiff’s administratrix (plaintiff) seeks to [165]*165recover for personal services alleged to have been rendered by him to the defendant’s testator (defendant). The defendant denied the allegations, pleaded the statute of limitations and declared in set-off alleging that the plaintiff owed the defendant Twenty-nine hundred ($2900.) dollars for money loaned. After a trial there was a finding for the defendant and also a finding for him on his declaration in set-off. The plaintiff claiming to be aggrieved by the denial of several of his requests for rulings of law claimed a report. This report was dismissed by order of the trial judge because it was not double spaced as required by Rule 31 of the Rules of the District Courts (1965). From this order of dismissal the plaintiff claimed the report now before us. The only issue presented is the propriety of the order.

Rule 31 of the Rules of the District Courts (1965) in its applicable part reads:

“The draft report and all papers intended for use before the Appellate Division shall. . .be printed or typewritten upon opaque paper. . .The typewriting or printing including all quotations shall be double-spaced____”

We observed in part in Allston Supply Co., Inc. v. Interstate Plumbing and Heating Supply Corp., 25 Mass. App. Dec. 139 at 140-141.

“All rules of court, duly made, 'have the force of law, and are binding upon the court and the parties, and cannot be waived [166]*166or ignored. Such rules are to be respected and enforced. Flynn, Pet., 265 Mass. 310, 313.

Benjamin Apkin, of North Adams for the defendant. Joan Keyes Scott, of Williamstown for the plaintiff.

“Provisions of statutes and rules of court regulating procedure are construed strictly, Famigletti 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.”

The report is to be dismissed.

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40 Mass. App. Dec. 164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saunders-v-apkin-massdistctapp-1968.

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