Langone v. Kelling Nut Co.

Garvey, P. J. This tort action was transferred for trial by order of a justice of the Superior Court under the provisions of G.L. c. 231, § 102C to the District Court. The minor plaintiff, Lisa Langone, alleges she was injured as a result of her eyelid being caught on a dangerous and hazardous metal furnished by the defendant to the operator of a drug store in Chicopee, Massachusetts for the sale and display of its products. Her father sues for consequential damages. The trial justice on July 20, 1967 found for the plaintiffs and on the same day notice of his findings was mailed to counsel for the parties; On July 27, 1967 the defendant filed a motion for a new trial which, after hearing, was denied on August 9, 1967. On August 12, 1967 the defendant filed a draft report claiming to be aggrieved by the denial of certain requests for rulings of law duly filed at the trial. [139] We agree with the contention of the plaintiffs that the report is not properly here. G-.L. c. 231, § 108 states: “The request for such a report shall be filed with the clerk of any district court within five days after notice of the finding or decision...” Buie 27 of the Buies of the District Courts (1965) provides: “Such a request for a report shall be filed with the clerk within five days after notice of the finding or decision”. Both the statute and the rule further provide that a draft report filed within this period shall be deemed to include a request for a report. “Provision of statutes and rules of court regulating appellate procedure are construed strictly.” Famigletti v. Neviackas, 324 Mass. 70, 72. The defendant did not file a request for a report. It filed a draft report [concerning matters involved in the judge’s finding] on August 12, 1967, twenty-two days after notice of finding. Failure to file a request for a report or a draft report within five days of notice of finding is fatal to its right to prosecute this appeal. Murphy v. William C. Barry, Inc., 295 Mass. 94, 97. Conway v. Murphy, 287 Mass. 536, 537. Filing a motion for a new trial does not stay the period within which a draft report [140] must be filed.. Rule 28 of the Rules of the District Courts (1965). Donald A. Beaudry, of Springfield, for the Defendant. Scuderi and Conway, of West Sprinfield, for the Plaintiffs. Cases upholding dismissals or the refusal by appelate courts to entertain appeals, where there has been a failure to comply with the rules of court are collected in Allston Supp. Co., Inc., v. Interstate Plumbing & Heating Supply Corp., 25 Mass. App. Dec. 139, 141-142. The report is to be dismissed.