Cobb v. Chickatawbut Club

Municipal Court of the City of Boston, Report to Appellate Division. Rules of Court. A request under St. 1912, c. 649, § 8, for a report of a ruling of a judge of the Municipal Court of the City of Boston for determination by the Appellate Division is not “filed with the clerk within two days after notice of the ruling,” as required by the statute, if it is filed on the third day after the day on which the clerk of the court delivered such notice to the attorney for the requesting party. Under a rule adopted by the judges of the Municipal Court of the City of Boston relating to the procedure in requesting a report of a ruling for determination by the Appellate Division under St. 1912, c. 649, § 8, which rule provides that within three days “after the cause is otherwise ripe for judgment . . . the party requesting the report shall file a draft thereof,” where it is shown that the cause was “otherwise ripe for judgment” on a certain day, the right to a report to the Appellate Division is lost if the draft report was not filed within three days from that date.

Petition, filed in the Municipal Court of the City of Boston on February 27, 1913, to vacate a judgment entered in that court against the petitioner in an action of contract brought by the Chickatawbut Club, a corporation. The petition was denied by Burke, J., and judgment was entered for the respondent on the petition. The petitioner appealed. In the Superior Court the case was heard by Hall, J., without a jury. The petitioner contended that the judgment which he sought to vacate was entered erroneously because within the required time after notice of the ruling of the judge of the Municipal Court he had filed under St. 1912, c. 649, § 8, with the clerk of that court a request for a report of the case to the Appellate Division, but that his request for a report had been denied on the ground that it had'been received by the clerk one day too late. The facts that were shown at the hearing in the Superior Court are stated in the opinion. There also was put in evidence the following rule relating to the procedure under St. 1912, c. 649, § 8, which was adopted at a meeting of the judges of the Municipal Court of the City of Boston held on September 16, 1912: “Rule B. Reports. Within three days after the cause is otherwise ripe for judgment, or sooner if the justice whose ruling is complained of so orders, the party requesting the report shall file a draft thereof, setting forth in clear and concise terms the rulings upon which he has requested and now asks a re-hearing by the Appellate Division, the stage of the case at which, and the manner in which the same arose, how the party seeking the report claims to be prejudiced by such rulings, and any other facts essential to a full understanding of the questions presented. A hearing shall be had thereon if any party files a written request therefor. The justice shall sign such report or such amended form thereof as may be necessary to conform to the facts, or disallow the same, in either case returning the report to the clerk with his action endorsed thereon. The clerk shall forthwith give notice to the parties and upon the allowance or establishment of any report, shall enter the cause upon the list of causes ready for hearing by the Appellate Division.” At the close of the evidence at the hearing in the Superior Court the petitioner asked the judge to make the following ruling: “On all the evidence the petitioner is entitled to have the judgment vacated and execution superseded and have said action brought forward on the docket of the court to be tried and disposed of as if said judgment had not been rendered.” 1 The judge refused to make this ruling. He denied the petition and found for the respondent; and the petitioner alleged exceptions.