Whitby v. Denno

Mass. Dist. Ct., App. Div.

Whitby v. Denno

1982 Mass. App. Div. 187, 1982 Mass. App. Div. LEXIS 92

CourtMassachusetts District Court, Appellate Division

DecidedJuly 27, 1982

StatusPublished

Cited by1 cases

This text of 1982 Mass. App. Div. 187 (Whitby v. Denno) 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

Whitby v. Denno, 1982 Mass. App. Div. 187, 1982 Mass. App. Div. LEXIS 92 (Mass. Ct. App. 1982).

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Opinion

Greenberg, J.

This action was transferred to the District Court of Hampshire from the Superior Court pursuant to G.L. c. 231, § 102C. On June 18, 1981, a judgment was entered against the defendant. Notice of the judgment was received by defendant's counsel on June 22,1981. A timely request for retransfer should have been filed with the District Court by July 2, 1981. In fact, the request was mailed and received by the Court on July 7, 1981, five days beyond the requisite 10 day period.

A motion for leave to file the request late, treated by the trial judge as a motion for transfer, was denied. The defendant claims to be aggrieved by this action of the trial judge.

The statute in question is clear and unambiguous in its terms that “(t)he request for retransfer....shall be filed with the clerk of said district court within ten days after notice of the finding or decision." The language has been held as mandatory and not directoiy in numerous cases. Brandywine v. Kardon, 32 Mass. App. Dec. 86 (1965); Griffin v. Powers. 1 Mass. App. Ct. 846 (1973). Only the filing of a motion pursuant to Dist./Mun. Cts. R. Civ. P., Rule 59 to amend judgment or an appeal taken pursuant to G.L. c. 231, § 108 within the ten day period stays the ultimate axe from its fall on the aggrieved party. Davis, et al. v. Bennett, Mass. App. Dec. (1982)

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Greenberg, J.

This action was transferred to the District Court of Hampshire from the Superior Court pursuant to G.L. c. 231, § 102C. On June 18, 1981, a judgment was entered against the defendant. Notice of the judgment was received by defendant's counsel on June 22,1981. A timely request for retransfer should have been filed with the District Court by July 2, 1981. In fact, the request was mailed and received by the Court on July 7, 1981, five days beyond the requisite 10 day period.

A motion for leave to file the request late, treated by the trial judge as a motion for transfer, was denied. The defendant claims to be aggrieved by this action of the trial judge.

The statute in question is clear and unambiguous in its terms that “(t)he request for retransfer....shall be filed with the clerk of said district court within ten days after notice of the finding or decision." The language has been held as mandatory and not directoiy in numerous cases. Brandywine v. Kardon, 32 Mass. App. Dec. 86 (1965); Griffin v. Powers. 1 Mass. App. Ct. 846 (1973). Only the filing of a motion pursuant to Dist./Mun. Cts. R. Civ. P., Rule 59 to amend judgment or an appeal taken pursuant to G.L. c. 231, § 108 within the ten day period stays the ultimate axe from its fall on the aggrieved party. Davis, et al. v. Bennett, Mass. App. Dec. (1982)

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1982 Mass. App. Div. 187, 1982 Mass. App. Div. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitby-v-denno-massdistctapp-1982.

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