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.
BY THE COURT.
This is a petition to vacate a judgment entered in the Municipal Court of the City of Boston. A decisive question is whether the petitioner seasonably asked for a report by the trial judge of that court to its Appellate Division. It is required by St. 1912, c. 649, § 8, that a party aggrieved by any ruling on a matter of law may have the ruling reported as of right, but "The request for such a report shall be filed with the clerk within two days after notice of the ruling." The record of the case in the Municipal Court showed that the defendant, who is the petitioner to vacate the judgment, filed requests for rulings on December 24, 1912, and that on December 30 the judge found for the plaintiff, the respondent to the petition, and filed a memorandum of rulings, and that judgment was entered on January 3, 1913. The ruling of the trial judge must have been made not later than December 30, 1912. The only evidence as to the time when notice of this finding and ruling was given came from a clerk of the Municipal Court, who testified that he personally delivered such notice to the attorneys for the defendant on December 31, 1912. The request for a report was filed on January 3, 1913. Manifestly this request was not filed within two days after notice of the ruling.
A rule of the Municipal Court provided that within three days "after the cause is otherwise ripe for judgment . . . the party requesting the report shall file a draft thereof." An assistant clerk of the Municipal Court testified that this cause was "otherwise ripe for judgment" on December 30, 1912. This evidence is confirmed by the transcript of the record of the case. The draft report was not filed within three days from this date.
The petitioner fails on both grounds.
Exceptions overruled.