Johanson v. First National Stores, Inc.

Jones, P. J. This canse is before ns under a form entitled iC Petition, by the defendant, First National Stores, Inc. to Establish its report and Defendant’s affidavit”. By the docket entries it appears that December 31, 1935, a finding was made for the plaintiff; January 10, 1936 defendant duly filed its draft report and also its request for a hearing on the draft report; July 10, 1936 the present attorney appearing for the defendant appeared for the first time; July 14,1936 the report was allowed and July 15,1936 notice of the allowance of the report was given to all attorneys of record, including defendant’s attorney; July 17, 1936 copy of the report was mailed to the present attorney for the defendant and July 18, 1936 the same was received by him; on July 30, 1936 defendant filed the instant motion to amend report; July 30, 1936 defendant filed copies of report as allowed as required by Rule XXVIII of the Rules of the District Court, 1932 Ed. August 8, 1936 copies of report and request of plaintiff for extension of time for filing brief and docket entries were received by this division; September 22, 1936 defendant’s motion to amend [20] report was mailed to the Appellate Division, the ease not having been heard on the merits by the appellate division; September 28, 1936 defendant’s motion to amend report was returned to the court of origin by the Appellate Division; Rule XXVIII of District Courts; October 3, 1936, hearing was had on defendant’s motion to amend report and motion was denied; October 7, 1936 the defendant filed the instant petition to establish its report based not only on the denial by the trial judge of the defendant’s motion to amend but also of the matter of the report allowed by the trial judge; in other words the defendant is asking for the establishment of a report based on the merits of the case regarding a finding entered December 31, 1935, and the report thereof that was allowed July 13, 1936. This petition was filed .October 7, 1936, and Rule XXX of the Rules of the District Court, 1932 Ed. requires that the party seeking the establishment of a report “may within five days after such allowance . . . file with the clerk his petition verified by affidavit setting forth in full his claim for such a report and all of the facts material thereto”, so that so much of the petition to establish a report as is based upon the allowance of the original report is not properly before us because not filed within five days of the allowance of the report, and for the further reason that the defendant by his action in moving to amend the report as allowed and filing copies of the report as required by Rule XXXT as allowed within fifteen days of its allowance and briefs in support of his contention has waived any right to the establishment of a report on the matters set forth in the report allowed. Regarding so much of the petition to establish a report as is based on the denial of the defendant’s motion to amend the report allowed by the trial judge, we cannot amend the [21] report without the consent of the trial judge. Commonwealth v. Suffolk Trust Co., 161 Mass. 550; Burbank v. Farnham, 220 Mass. 514, 516, 517; and no sufficient reason having been shown us that the trial judge was in error in denying the defendant’s motion an order will be made affirming the denial of the motion and dismissing the petition to establish a report.