Tierney v. City of Waltham

Mass. Dist. Ct., App. Div.

Tierney v. City of Waltham

2 Mass. App. Div. 580

CourtMassachusetts District Court, Appellate Division

DecidedDecember 9, 1937

StatusPublished

This text of 2 Mass. App. Div. 580 (Tierney v. City of Waltham) 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

Tierney v. City of Waltham, 2 Mass. App. Div. 580 (Mass. Ct. App. 1937).

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Opinion

Jones, P. J.

This is defendant’s petition filed September 20, 1937, asking that the time for filing a petition to establish a report under Rule XXX of the Rules of the District Courts, 1932 Ed. be extended for such time as the [581]*581Appellate Division may allow. We are unable to discover from the petition any clear ground for such extension.

The petition alleges, if we get its true import, that the plaintiff filed a motion to dismiss a request for a report and a draft report filed by the defendant because of failure in the request for report to comply with Rule XXVII of the Rules of the District Courts, 1932 Ed. requiring ■that “the request shall contain a clear and concise statement of the rulings upon which a re-hearing is requested sufficiently full and accurate for identification”; that a hearing was had upon said motion; that on September 14th the defendant received notice of the decision of the justice who heard said motion allowing it; that the defendant, claiming that said request for report did comply with said Rule XXVII in the respect above stated, duly filed on September 16, 1937 a request for report on the allowance of said motion, the ruling made as above set forth; and, that draft report in the matter of said request and its denial is in process of preparation and will be seasonably filed.

We are unable to perceive any good ground for the granting of the petition. It was but a very simple matter to have filed a draft report of the matter involved in the decision by the trial court within the time required under the rule. Such a report would require in substance only a statement that the defendant filed in the '•‘ase the request for a report on. certain rulings made, copying them exactly word for word, and, that the request for a, report was dismissed by the court. This in substance is all that is required to biing the matter to the appellate division.

We believe this is the first petition of this character brought before us.

There is no provision in the rules that have been pointed out allowing such a procedure as is here asked for; no [582]*582claim of report has been disallowed by the justice of the court hearing the matter; there is no failure of any justice to act as provided by Rule XXX; ,the action on the report has not been unduly delayed; and the only purpose of Rule XXX is to provide a remedy where the report is unduly delayed after the disallowance of a report.

We, therefore, perceiving no real reason for the action desired, are compelled to deny the defendant’s petition.

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Jones, P. J.

This is defendant’s petition filed September 20, 1937, asking that the time for filing a petition to establish a report under Rule XXX of the Rules of the District Courts, 1932 Ed. be extended for such time as the [581]*581Appellate Division may allow. We are unable to discover from the petition any clear ground for such extension.

The petition alleges, if we get its true import, that the plaintiff filed a motion to dismiss a request for a report and a draft report filed by the defendant because of failure in the request for report to comply with Rule XXVII of the Rules of the District Courts, 1932 Ed. requiring ■that “the request shall contain a clear and concise statement of the rulings upon which a re-hearing is requested sufficiently full and accurate for identification”; that a hearing was had upon said motion; that on September 14th the defendant received notice of the decision of the justice who heard said motion allowing it; that the defendant, claiming that said request for report did comply with said Rule XXVII in the respect above stated, duly filed on September 16, 1937 a request for report on the allowance of said motion, the ruling made as above set forth; and, that draft report in the matter of said request and its denial is in process of preparation and will be seasonably filed.

We are unable to perceive any good ground for the granting of the petition. It was but a very simple matter to have filed a draft report of the matter involved in the decision by the trial court within the time required under the rule. Such a report would require in substance only a statement that the defendant filed in the '•‘ase the request for a report on. certain rulings made, copying them exactly word for word, and, that the request for a, report was dismissed by the court. This in substance is all that is required to biing the matter to the appellate division.

We believe this is the first petition of this character brought before us.

There is no provision in the rules that have been pointed out allowing such a procedure as is here asked for; no [582]*582claim of report has been disallowed by the justice of the court hearing the matter; there is no failure of any justice to act as provided by Rule XXX; ,the action on the report has not been unduly delayed; and the only purpose of Rule XXX is to provide a remedy where the report is unduly delayed after the disallowance of a report.

We, therefore, perceiving no real reason for the action desired, are compelled to deny the defendant’s petition.

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Bluebook (online)

2 Mass. App. Div. 580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tierney-v-city-of-waltham-massdistctapp-1937.