Orlov v. MacNeil Bros.

Appeal dismissed. This is a petition by eight of nine defendants in an action by MacNeil Bros. Company against State Realty Company of Boston, Inc., and others, appearing specially, for the discharge of an attachment by trustee process of the goods, effects and credits of three of their number, Messrs. Fox, Orlov and Cowin, in the hands and possession of First National Bank of Boston. G. L. (Ter. Ed.) c. 223, § 114, as appearing in St. 1943, c. 234, § 2. Although no one of the defendants has been served with process the action was entered in the Superior Court on the first Monday of December, 1954. Following a motion to dismiss, judgments were entered in the principal action for Fox, 769 Orlov and Cowin as of February 7, 1955. AU petitioners filed a discontinuance of their petition “without prejudice” on March 4, 1955. On March 26, 1956, the respondent (plaintiff in the original action) moved for judgment on the discontinuance. The motion was denied and the petition ordered dismissed as matter of law. From the denial of the motion and the dismissal of the petition the respondent appealed. A motion to dismiss these appeals was allowed and the respondent appealed from the order of dismissal. This appeal is not properly before us. It was from an order entered in a proceeding merely incidental to the principal action which is still pending. Richardson v. Greenhood, 225 Mass. 608. Weiss v. Balaban, 315 Mass. 390, 393. Angus M. MacNeil, for the defendant. Phillip Cowin, for the plaintiffs. (The rescript in each of the three companion cases reads: Appeal dismissed. See “brief statement of the grounds and reasons of the decision” accompanying the companion case decided herewith. — Reporter.)