Publicover v. Gordon

Keniston, C. J. In this action the defendant after a finding for the plaintiff seasonably filed a draft report with the clerk of the court. The report states that "a copy of the same (the draft report) was mailed forthwith to the attorney for the defendant.” We assume that this is an error and that the copy was sent to the attorney for the plaintiff. No copy was delivered or mailed to the trial judge. The plaintiff later filed a motion that the defendant’s draft report be dismissed for the reason "that no copy thereof was mailed to the trial judge as required by the rules of the Court.” The court dismissed the draft report and allowed the plaintiff’s motion to dismiss the draft report. The defendant claims to be aggrieved by the dismissal of his draft report. Rule 31 of the rules of this court established December 1, 1952 provides in part that "After the report has been filed, one copy thereof shall be delivered or mailed forthwith to the adverse party and one to the trial Judge, and a hearing shall be had on such report if any party files within ten days of the filing of the draft report a written request therefor.” The provision of this rule requiring, a copy of the draft report to be mailed to the trial judge is mandatory and there was no error on the part of the trial judge in dismissing the draft report and in granting the plaintiff’s motion to that effect. Wind Innersole & Counter Co. v. Geilich, 317 Mass. 327; Famigletti v. Neviackas, 324 Mass. 70. Hill, Barlow, Goodale & Wiswall, for the plaintiff. Wolk & Tamkin, for the defendant. We do not agree with the defendant’s contention that this requirement of the rule refers to the report and not the draft report. Although the word report and not draft report is used at the beginning of the sentence, a reading of the sentence as well as the rest of tne context of the rule, shows that the draft report and not the report is meant. The words draft report are used in the latter part of the sentence. The rule would have no sense if the construction for which the defendant contends were used. Report dismissed.