Zimmerman v. Ferreira

50 Mass. App. Dec. 24

• Court: Massachusetts District Court, Appellate Division
• Decided: November 8, 1972
• Docket: No. 1364
• Status: Published

Opinion

Rider, J.

In this contract action the defendant appeals from the denial by the trial judge of his motion for summary judgment.

This appeal is premature since the denial of defendant’s motion is an interlocutory matter and not a final disposition of the case.' There is no appeal to the Appellate Division until the case is “otherwise ripe for judgment, or sooner by consent of the justice hearing the same.” G.L. c. 231, § 108. Daniels v. Cohen, 249 Mass. 362, 364-365; Pokrant v. Horrigan, 20 Mass. App. Dec. 1. There is no indication of the “consent of the justice hearing the same” in the report. If defendant’s motion had been allowed, the case would have been ripe for judgment.

Interlocutory and non-determinative rulings may be reported only by the trial judge as permitted by G.L., c. 231, § 108. See Rule 29 of the District Courts (1965). Such a report should be accompanied by a certificate of the judge that the matter so affects the merits of the controversy that it ought in justice to be determined by the Appellate Division before further proceedings are had. Real Property Co., Inc. v. Pitt, 230 Mass. 526, 527. No such certificate accompanied the report in this instance.

Owen J. Meegan and Abraham J. Zimmerman for the Plaintiff Robert M. Laird for the Defendant

We are of the opinion that G.L. c. 231, $ 108 does grant a right of review of interlocutory decisions of District Court. The right, however, cannot he exercised until the case is ripe for judgment. Patrick v. Mikolaitis, 22 Mass. App. Dec. 167.

The appeal is dismissed without prejudice.