James J. Dowd & Sons Insurance Agency v. Fred C. Hallahan Lumber Co.

Gelinas, J. Defendants file this petition to establish a report, claiming to be aggrieved by a trial judge's allowance of plaintiffs motion to dismiss draft report. After entry in the Appellate Division argument was scheduled for June 16,1993. Neither appellant nor his counsel appeared on that date nor did his counsel before or after indicate any reason for absence. Appellee counsel was present. A review of the filed documents and docket reveal default judgment for plaintiff entering on January 27,1992; motion for relief of judgment filed June 19,1992, and heard and denied on June 26, 1992 with decision of denial docketed that same day; parties notified August 14,1992; request for report and draft report filed August 25, 1992. Aside from defendants’ failure to appear and prosecute this appeal, the petition must be denied on its merits; Dist./Mun. Cts. R. Civ. P., Rule 64 requires filing a request for report no more than 10 days after entry of judgment, in this case within 10 days of June 6,1992. Failure of the clerk to give notice does not excuse compliance with the time limit, see Dist./Mun. Cts. R. Civ. P., Rule 77 (d) and Donavan v. Berkshire Gas Company, et al. 1984 Mass. App. Div. 108. The petition is denied.