ARTHUR A. TERRIO v. JOHN S. CONWAY.

By decision dated August 29, 1979 this Court found for the plaintiff. The defendant's then counsel seasonably filed a notice of appeal on September 24, 1979. The Land Court therefore assembled the record on appeal and gave notice to the Appeals Court and to all counsel of record on November 8, 1979 that this had been done. The defendant's counsel had ten days thereafter to enter the appeal, but this was not done. Accordingly, the plaintiff's then counsel filed a motion to dismiss the appeal which motion he originally marked for hearing on February 6; it was continued to February 15, and continued again until February 21, 1980. The postponement first arose, because counsel for the defendant advised the counsel for the plaintiff by letter dated January 29, 1980 that he would be out of the country until February 14 and therefore unable to attend a hearing on February 6. He further wrote that "any time after the 14th will be fine with me, but I hope to have some idea of settlement from my clients prior to the date." On February 21, 1980, the date to which the hearing on the plaintiff's motion to dismiss the appeal had been continued, the defendant's attorney did not appear in Court. He advised the clerk by telephone that he would not be in, that he did not assent to the motion but that he assumed that it would be allowed. Since the attorney did not appear to object, the motion to dismiss the appeal indeed was granted, it appearing to the Court that defendant was not interested in prosecuting his right to appeal. Approximately one year later, on February 6, 1981 a motion was filed on behalf of the defendant by another attorney for a rehearing of the plaintiff's motion to dismiss the appeal of the defendant.

As grounds for rehearing, the defendant now argues that there was no excusable neglect attributable to him in connection with the failure to comply with the provisions of the Rules of Civil Procedure, that the failure to do so was due to the illness of his then attorney, that the defendant was unaware that the appeal had not been entered in the Appeals Court, that he believed that the appeal was being pursued by counsel, and that he has a meritorious ground for appeal. The motion for a rehearing was argued by counsel for the parties on March 6, 1981, and a motion to strike made by the defendant of paragraph five of the plaintiff's memorandum in opposition to defendant's motion for rehearing was filed on March 19, 1981 and argued on March 30, 1981. At the March sixth hearing the plaintiff moved in open court to strike the defendant's affidavit, and the defendant moved to impound the affidavit of his former counsel, his own affidavit and his memorandum. The latter motion has not been pressed, and the former now is denied as is the defendant's motion to strike.

The curious twist which the appeal in this Court has taken has provided the Court with a dilemma. If counsel had been present on February 21, 1980 and had opposed the motion to dismiss the appeal, the Court, upon assurances that the appeal would be prosecuted, would have granted additional time for the entry of the record in the Appeals Court. Counsel failed to appear, and his message to the Court strongly suggested that the defendant was not financially prepared to go forward with the appeal. In fact, the Court is now informed, the defendant always wished to pursue the appeal, never was billed for previous services of counsel, and never was asked for any sums to prosecute the appeal.

Upon consideration of the affidavits filed with the Court and a review of the background of the case the Court has concluded that counsel for defendant was overwhelmed by the exigencies of his practice, his health, both physical and mental, his family situation, and the prospect of having to pursue an appeal in the present proceeding. It may be that his position was not substantially different from that of many attorneys at some period in their professional career. However, there seems no reason other than mere lapse of time for the defendant to lose his recourse to the courts. Under the circumstances here present, neither of the original parties would be hurt by allowing the motion for rehearing. The plaintiff is the defendant's father-in-law and has not changed his position in the interim. While it is true that an interest in the property has been conveyed to the plaintiff's former attorney, he does not stand in the same position as would a bona fide purchaser for value and without notice. In balancing the equities I have concluded that the defendant's motion for a rehearing of the plaintiff's motion to dismiss the appeal should be and is granted. Since I already have heard the arguments at length on the plaintiff's 1980 motion to dismiss the appeal, I find and rule that it is not necessary to mark the motion for rehearing. Rather, on the arguments already made, I hereby deny it without prejudice. Should the defendant's appeal not be prosecuted with dispatch, however, the motion may be filed again.