May 20, 1935.
May 22, 1935.
Present: RUGG, C.J., PIERCE, FIELD, LUMMUS, QUA, JJ.
Practice, Civil, Appellate division: request for report; Rules of court.
A certain request for report to an appellate division did not comply with the requirement of Rule 27 of the District Courts (1932) that it should "contain a clear and concise statement of the rulings upon which a re-hearing is requested sufficiently full and accurate for identification."
TORT. Writ in the Second District Court of Bristol dated August 27, 1932.
The action was heard in the District Court by Silvia, J., who found for the plaintiff in the sum of $850. The defendant filed the request for report described in the opinion, and a draft report. A motion by the plaintiff to dismiss the defendant's request for report and draft report was denied, and the denial was reported. The Appellate Division for the Southern District filed an opinion stating that the defendant's request for report did not conform to Rule 27 of the District Courts (1932), that "he was not entitled to a report," and that his "request for report should have been disallowed, and judgment entered for the plaintiff on the finding of the trial" judge; and ordered the entry "Report dismissed." The defendant appealed.
A. Sherman, for the defendant.
H.W. Radovsky, ( C. Soforenko with him,) for the plaintiff.
This is an action of tort to recover compensation for personal injuries sustained by the plaintiff through a collision with an automobile driven by the defendant. The finding was for the plaintiff. A request for a report to the Appellate Division was seasonably filed by the defendant in these words: "The defendant in the above entitled action being aggrieved by the refusal of the Justice to give the rulings of law requested by him requests that the matter be reported to the Appellate Division." The plaintiff filed a motion to dismiss the request for report on the ground that it was not in accordance with the rules of the District Court and that the defendant was not therefore entitled to the report. It appears that the defendant filed six requests for rulings, of which three were allowed and three denied.
Rule 27 of the Rules of the District Courts (1932) is in part in these words: "The request shall contain a clear and concise statement of the rulings upon which a re-hearing is requested sufficiently full and accurate for identification." It is plain that on authority the request for report did not conform to this rule. It contained no statement of the rulings upon which the rehearing was desired. Merely to refer to prayers for rulings without identifying them in some specific way is not enough. The case at bar is governed by Stafford v. Commonwealth Co. 263 Mass. 240, 242, and Rollins v. Perry, 284 Mass. 488. It is clearly distinguishable from Zani v. Phandor Co. 281 Mass. 139.
Order dismissing report affirmed.