Yeager v. Delmolino

1988 Mass. App. Div. 64, 1988 Mass. App. Div. LEXIS 11

Opinion

McGuane, J.

This matter came on to be heard by the Appellate Division Western District on January 20,1988.

This appeal or petition to establish a report has had a very tortuous and inexplicable history but the trial justice, who dismissed the defendants’ request for a report, was correct. This matter should have been resolved many years ago.

Our only source of history in this case is the docket sheets from the trial court.

We find the following dates of some significance: On June 28, 1983, an ex parte request for temporary restraining order dealing with a landlord-tenant relationship under G.L. c. 186 was filed. This ex parte order was denied without prejudice and continued to July 1,1983 for hearing with notice to the parties. On the same date June 28,1983, the complaint was also filed.

The defendants were defaulted on October 7, 1983. On April 27, 1984 the court entered judgement for plaintiff for ($1,400.00) plus interest and reasonable attorney’s fees in the sum of ($546.00).

On May 7,1984 within 10 days of judgment, the defendants filed a motion for a new trial.

On August 3,1984, execution on said judgment issued.

The next entry is an appeal filed by defendants to the Superior Court on February 4,1985.

At this point the defendants, if they had not already, waived their rights, made their election to proceed to the Superior Court and abandoned their rights to proceed to the Appellate Division.

The fact that they continued to file motions to vacate judgment and the fact the court proceeded to hear said motions does not vitiate the procedural error.

The defendants in this matter raise the issue that their constitutional rights have been denied because they claim a trial on the merits was never held.

It is apparent that trials may be waived, that defendants may be defaulted and judgment entered against them without loss of any procedural or due process rights.

Given the long and arduous history of this case, the trial court’s denial of the defendants’ request for report was correct, the petition to establish a report is denied.