9 Mass. App. Ct. 836

January 29, 1980

The appeal is from the order of a single justice denying the relief sought by the defendant under G. L. c. 279, Section 4 (as most recently amended by St. 1979, c. 344, Section 49), and Mass. R. Crim. P. 31 (a), 378 Mass. 902 (1979). A perusal of the record before the single justice, of his order and of the twenty-seven lines of argument in the defendant's brief on appeal leaves us unpersuaded that the single justice erred in concluding that "the [defendant] has not demonstrated a reasonable likelihood of success on appeal as that standard is defined in Commonwealth v. Levin, 7 Mass. App. Ct. 501 , 503 (1979), and Commonwealth v. Allen, 378 Mass. 489 , 499 (1979), so as to warrant a stay."

Order affirmed


9 Mass. App. Ct. 836

January 30, 1980

By agreement judgments for the plaintiff for possession were entered in summary process actions (see G. L. c. 239, Section 1) filed in a District Court. The District Court judge did not order an appeal bond or payment of rents into escrow as required by G. L. c. 239, Section 5, as appearing in St. 1977, c. 655, Section 1. After appeal to the Superior Court and a claim by the defendants for trial to a jury, the plaintiff moved in that court for payment of rents pursuant to G. L. c. 239, Section 5. Those motions were allowed, and the defendants took no appeals. The plaintiff subsequently moved to dismiss the then pending Superior Court appeals for failure to comply with that court's orders for rent payments.

Page 837

A Superior Court judge allowed the motions to dismiss and entered judgments in compliance with Mass. R. Civ. P. 54(b), 365 Mass. 821 (1974), from which these present appeals ensued. There was no error.

1. General Laws c. 239, Section 5, states in relevant part that "[a]ny party . . . who wishes to contest the amount of periodic payments required by the court" must seek review from a single justice (not a panel) of this court within the time specified therein. The defendants here, not having done so at all, are not entitled to any relief from the judge's orders dismissing the appeals. In short, the judge properly dismissed the appeals because the defendants neither complied with his order nor sought review of it pursuant to the fourth paragraph of G. L. c. 239, Section 5.

2. We do not consider any of the defendants' arguments based on the master's findings. As his report was never adopted by the trial judge, those "findings . . . . are entitled to no weight whatever." Peteros v. Peteros, 328 Mass. 416 , 421 (1952), and cases cited.

Judgments affirmed.