Ahern v. Towle

• Decision Date: 28 January 1942
• Parties: AHERN v. TOWLE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 695
39 N.E.2d 561

AHERN
v.
TOWLE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 28, 1942.

Appeal from Municipal Court of Boston, Appellate Division; Brackett and Donovan, Judges.

Action of contract in the Municipal Court of the City of Boston by Joseph W. Ahern against Annie Towle and another to recover on a check for $800 drawn by the defendant, wherein the judge found for the defendant and reported the case to the Appellate Division. From an order of the Appellate Division that judgment be entered for plaintiff and from an order of the Appellate Division that a second report be dismissed, the defendant appeals.

Orders affirmed.

Before FIELD, C. J., and QUA, DOLAN, and COX, JJ.

J. B. Harte, of Boston, for plaintiff.

M. B. Lynch, of Boston, for defendant.

DOLAN, Justice.

This is an action of contract in which the plaintiff seeks to recover on a check for $800, drawn by the defendant on The First National Bank of Boston. The judge found for the defendant and reported the case to the Appellate Division which, on March 29, 1940, ordered that judgment be entered for the plaintiff. The defendant appealed. After taking this appeal the defendant on May 9, 1940, filed in the trial court a motion that the report of the judge to the Appellate Division on the merits of the case be dismissed. The judge denied this motion and reported his action to the Appellate Division, which entered an order that this report be dismissed. The defendant appealed from this order.

We first consider the disposition of the motion to dismiss the report. The material facts as to this phase of the case follow: The judge heard the case on the merits on June 7, 1939. Within the time allowed, both parties filed requests for rulings. On June 23, 1939, the judge filed a memorandum in which he found for the defendant and dealt with the plaintiff's requests for rulings, granting some and refusing others. On the same day the plaintiff filed a request for a report, which set forth verbatim his requests for rulings and specified those actually given and those refused, and stated: ‘The plaintiff, being aggrieved by the court's rulings and refusals to rule as requested, hereby requests a report of the same to the Appellate Division of this court.’

On June 27, 1939, upon the plaintiff's motion, the judge extended the time for filing the draft report to July 15, 1939. The defendant was not given notice of this motion nor afforded an opportunity to be heard thereon. The plaintiff filed his draft report on July 12, and furnished the defendant with a copy. On July 13 the defendant requested a hearing on the draft report, which was given, and on July 21 the judge filed his report.

The defendant's motion to dismiss the report was based upon her contention that the various steps prerequisite to the claiming of a report had not been complied with. She filed twenty-five requests for rulings of which those numbered 2, 7, 14, 17 and 18 were denied by the judge. We do not decide that the motion was seasonably filed, but since the judge so ruled, in effect, and the parties have so dealt with the case, and so far as appears the Appellate Division so treated it, we deal with this phase of the case on the same basis.

The defendant's second request was as follows: ‘The request for a report did not comply with the provisions of Rule 28 then in force.’ That rule, which remains so far as material unchanged in the 1940 revision of the Rules of the Municipal Court of the City of Boston, provides that a request for a report to the Appellate Division ‘shall contain a clear and concise statement of the ruling upon which a rehearing is requested, sufficiently full and

[39 N.E.2d 563]

accurate for identification.’ In the present case the plaintiff set forth in full in his request for a report all of the requests for rulings made by him, and all of the rulings and refusals of rulings made by the judge. In these circumstances we think that it cannot be said rightly that the method employed by the plaintiff rendered identification of the disputed rulings and refusals to rule impossible or difficult. Stafford v. Commonwealth, 263 Mass. 240, 242, 160 N.E. 820,Rollins v. Perry, 284 Mass. 488, 489, 187 N.E. 909, and Almeida v. Alsdorf, 291 Mass. 115, 116, 196 N.E. 185, cited by the defendant, are distinguishable, since in those cases there was no basis for identification in the requests for reports comparable to that contained in the request in the present case.

The defendant's seventh request was for a ruling. ‘That the action went to judgment on the first day after the expiration of the time to request a report fixed by G.L. c. 235, § 2, for judgment.’ The plaintiff filed his request for a report within the five-day period fixed by G.L. (Ter.Ed.) c. 231, § 108, as amended by St. 1933, c. 255, § 1, and within the same period allowed by Rule 29 of the court involved, as amended in 1935, filed a motion for an extension of time within which to file a draft report. This motion was allowed. Normally a case is ripe for judgment when all appears to have been done with regard to the action that should be done. Porter v. Boston Storage Warehouse Co. 238 Mass. 298, 301, 130 N.E. 502.Home Finance Trust v...