Sharkey v. Rudy's Service, Inc.

Mass. Dist. Ct., App. Div.

Sharkey v. Rudy's Service, Inc.

1982 Mass. App. Div. 103, 1982 Mass. App. Div. LEXIS 65

CourtMassachusetts District Court, Appellate Division

DecidedApril 20, 1982

StatusPublished

This text of 1982 Mass. App. Div. 103 (Sharkey v. Rudy's Service, Inc.) 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.

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Sharkey v. Rudy's Service, Inc., 1982 Mass. App. Div. 103, 1982 Mass. App. Div. LEXIS 65 (Mass. Ct. App. 1982).

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Opinion

Silva, J.

This petition to establish a report arises from an original action alleging negligence and breach of contract for damages sustained to the Plaintiff s motor vehicle after having been stolen some time during the period of December 20 to December 31, 1974, while at the Defendant’s place of business.

The answer was a denial that the Defendant breached his duty of care or was negligent in the care of the motor vehicle while in his custody and that the damage was caused in whole or in part by the Plaintiff s own negligence. There was a trial on the merits, and the Court found for the Defendant.

Requests for rulings were timely filed by the Plaintiff and denied. On July 10, 1979, seven days after the finding and judgment and denial of the Plaintiffs requests, a request for report was filed. The docket entries do not reflect the filing of a draft report, but counsel alleged at oral argument that a draft report was attached to the request for report.

No action on the draft report was taken by the trial justice. On July 24,1981, two years after the filing of Plaintiffs request for report, the Plaintiff filed a motion to establish report and a draft report. This motion, which we treat as a petition, was not accompanied by an affidavit of the party or her attorney setting forth in full her request for such report and all the facts material thereto.

Rule 64(e) of the Dist./Mun. Cts. Rules of Civil Procedure provides, “Whenever a draft report shall be disallowed by a justice ... , or if action on such report is unduly delayed, the party seeking the same may . . ., file with the clerk his petition, including a copy of the draft report so disallowed, and five copies thereof verified by affidavit of the party or his attorney setting forth in full his request for such report and all of the facts material thereto.... No party shall be allowed to establish the truth of any allegations if he has failed to comply with the requirements herein prescribed. ’ ’

The affidavit required by the rule is a statement under oath in positive terms made by [104]*104some person having knowledge of the facts. O’Flanagan v. Smith, 317 Mass. 770, (1944); Dubois v. Boston & Maine R.R., 315 Mass. 758, (1944); Lasell v. Director of the Division of Employment Security, 325 Mass. 23, (1949).

The petition in this case contains no allegation that the draft report filed July 10, 1979, and sought to be established conforms to the truth and for want thereof must therefore fail.

Petition to establish report is denied.

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Silva, J.

This petition to establish a report arises from an original action alleging negligence and breach of contract for damages sustained to the Plaintiff s motor vehicle after having been stolen some time during the period of December 20 to December 31, 1974, while at the Defendant’s place of business.

The answer was a denial that the Defendant breached his duty of care or was negligent in the care of the motor vehicle while in his custody and that the damage was caused in whole or in part by the Plaintiff s own negligence. There was a trial on the merits, and the Court found for the Defendant.

Requests for rulings were timely filed by the Plaintiff and denied. On July 10, 1979, seven days after the finding and judgment and denial of the Plaintiffs requests, a request for report was filed. The docket entries do not reflect the filing of a draft report, but counsel alleged at oral argument that a draft report was attached to the request for report.

No action on the draft report was taken by the trial justice. On July 24,1981, two years after the filing of Plaintiffs request for report, the Plaintiff filed a motion to establish report and a draft report. This motion, which we treat as a petition, was not accompanied by an affidavit of the party or her attorney setting forth in full her request for such report and all the facts material thereto.

Rule 64(e) of the Dist./Mun. Cts. Rules of Civil Procedure provides, “Whenever a draft report shall be disallowed by a justice ... , or if action on such report is unduly delayed, the party seeking the same may . . ., file with the clerk his petition, including a copy of the draft report so disallowed, and five copies thereof verified by affidavit of the party or his attorney setting forth in full his request for such report and all of the facts material thereto.... No party shall be allowed to establish the truth of any allegations if he has failed to comply with the requirements herein prescribed. ’ ’

The affidavit required by the rule is a statement under oath in positive terms made by [104]*104some person having knowledge of the facts. O’Flanagan v. Smith, 317 Mass. 770, (1944); Dubois v. Boston & Maine R.R., 315 Mass. 758, (1944); Lasell v. Director of the Division of Employment Security, 325 Mass. 23, (1949).

The petition in this case contains no allegation that the draft report filed July 10, 1979, and sought to be established conforms to the truth and for want thereof must therefore fail.

Petition to establish report is denied.

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1982 Mass. App. Div. 103, 1982 Mass. App. Div. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharkey-v-rudys-service-inc-massdistctapp-1982.

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