Savage v. City of Boston

34 Mass. App. Dec. 124

• Court: Massachusetts District Court, Appellate Division
• Decided: April 29, 1966
• Docket: No. 88744-A
• Status: Published

Opinion

Adlow, C.J.

Action of tort by writ dated February 27, 1963 by Janice D. Savage, p.p.a., in which the plaintiff recovered judgment against the City of Boston in the amount of $409.04 which includes costs and interests.

Prior to. trial, the defendant City of Boston, as third party plaintiff, impleaded August H. Kaufman, Carl P. Coleman and Pauline Wolfson, as Trustees of Coleman Associates, as third party defendants. The third party defendants moved to dismiss “the impleader” against them on the ground that the court is without jurisdiction “over such impleader” under, the provisions of G.L.c. 231, §46 and §141 as revised.

Theodore R. Stanley for the City of Boston. James D. Casey.for trustees of Coleman Associates, third party defendants.

The court allowed the motion to dismiss, and the City of Boston being aggrieved by the court’s action brings this report.

There was no error. The right to implead a party is governed by statute, and is found in G.L.c. 231, §48, entitled “Impleader”. Unfortunately, an oversight in drafting the act failed to make it applicable to the District Courts of the Commonwealth. Nor was §141 of G.L.c. 231 entitled “Provisions applicable to District Courts” so amended as to include the above mentioned “Impleader” statute (G.L.c. 231, §38.). As a .consequence the advantages of this Impleader statute are available only in the Superior Court.

See Forty-first Report, Judicial Council of Massachusetts, 1965, pp 25-26;

Report dismissed. ■