3 Mass. App. Ct. 746

April 30, 1975

Under the procedure before July 1, 1974, the removal of a default rested in the sound discretion of the trial judge. G. L. c. 231, Section 57, as then in effect. Rogers v. Ladd, 117 Mass. 334 (1875). Squier v. Barnes, 193 Mass. 21, 25 (1906). Hurnanen v. Gardner Automobile Co. 225 Mass. 189, 191 (1916). Cohen v. Industrial Bank & Trust Co. 274 Mass. 498, 500 (1931). The same is true under Mass.R.Civ.P. 55 (c), 365 Mass. 823 (1974). There is nothing in the record before us which demonstrates any abuse of that discretion in the denial of the defendants' motion to remove the default. St. Martin v. Spinner, 347 Mass. 774 (1964). Askinas v. Goldman, 355 Mass. 792 (1969). There was no error in the allowance of the plaintiff's motion for judgment. Mass.R.Civ.P. 55 (b), 365 Mass. 822 (1974).

Judgment affirmed.


3 Mass. App. Ct. 746

April 30, 1975

The defendant, as the party asserting an easement over the lane in question, had the burden of proving the nature and extent of any such easement. Swensen v. Marino, 306 Mass. 582, 583 (1940). Fortier v. H. P. Hood & Sons, Inc. 307 Mass. 292, (1940). Goldstein v. Beal, 317 Mass. 750, 757 (1945). The fact that the plaintiff initiated this proceeding for declaratory relief does not shift that burden to him. Stop & Shop, Inc. v. Ganem, 347 Mass. 697, 703-704 (1964). That other persons, not before the court, may also have rights of passage over or own portions of the lane does not prevent the adjudication as between the plaintiff and the defendant of the latter's rights (if any) in such portion of the lane as may be owned by the plaintiff. The judgment is reversed, and the case is remanded for further proceedings not inconsistent with the foregoing.

So ordered.


3 Mass. App. Ct. 746

May 9, 1975

Donnelly appeals from the dismissal of his petition for a writ of certiorari which sought to require a District Court judge to certify the record of a summary process action (in which Donnelly was the defendant) to the Superior Court for a trial de novo. G. L. c. 239, Sections 5 and 6. The case is before us on the petition and the return thereto. Donnelly filed a timely claim of appeal in the summary process action, requesting that the requirement of posting bond or security therewith be waived as permitted under G. L. c. 239, Section 5. The District Court

Page 747

ruled that it was "not satisfied that . . . [Donnelly] has a defense which is not frivolous and therefore the motion is denied. Bond required with appeal . . . in [the] principal amount of $500." Thereafter Donnelly filed the petition which is now before us. The Superior Court heard the case on the record of the District Court as submitted, and ruled that the evidence before the latter court was sufficient to substantiate its rulings and that there was no error of law apparent on the face of the record. We have examined the entire record and are in complete agreement with the conclusions of the Superior Court. On the facts disclosed by the return, the requirement that Donnelly post a bond in the sum of $500 was both reasonable and proper. The requirement was not so onerous that it operated "unreasonably to prohibit, directly or indirectly . . . [a] meritorious appeal" (Damaskos v. Board of Appeal of Boston, 359 Mass. 55, 64 [1971]); to the contrary, it was a proper exercise of the court's duty "to discourage frivolous and vexatious appeals." Ibid. We do not pause to consider other issues purportedly raised in Donnelly's brief and reply brief as they are beyond the scope of the petition and, in any event, are wholly lacking in merit.

Order dismissing petition affirmed.