299 Mass. 516

February 9, 1938 - February 28, 1938

Court Below: Boston Municipal Court


Practice, Civil, Appeal.

A statement by a judge of the Superior Court, hearing an action at law without a jury, of his "findings and rulings" accompanying a finding for the defendant formed no part of the record on an attempted appeal therefrom, and the appeal was dismissed.

TORT, by amendment CONTRACT OR TORT . Writ in the Municipal Court of the City of Boston dated October 31, 1935.

On removal to the Superior Court, F. T. Hammond, J., found for the defendant. The plaintiff appealed.

A. M. Yoffa, for the plaintiff.

J. Saklad, for the defendant.

RUGG, C.J. This is an action at law. The record as printed consists of the plaintiff's declaration, the defendant's

Page 517

answer, "Statement of Findings and Rulings" signed by the trial judge and filed on May 11, 1937, a statement, also signed by the trial judge and filed on May 11, 1937, that the finding was for the defendant, with a reference to the "Statement of Findings and Rulings," and a motion by the plaintiff that judgment be entered for the plaintiff on the "Statement of Findings and Rulings," which was denied after hearing. The plaintiff appealed from the "order" of the trial judge "rendered on the eleventh day of May, 1937, finding for the defendant, and from the orders, rulings, and decisions on that day made by" the trial judge.

In only three instances can actions at law in the Superior Court be brought before this court by appeal: where there is (1) an order overruling or sustaining a demurrer on the ground that the facts pleaded do not in law support or answer the cause of action; (2) an order for judgment upon a case stated; or (3) an order decisive of the case founded upon matter of law apparent on the record. G. L. (Ter. Ed.) c. 231, ยง 96. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. Gallo v. Foley, ante, 1.

There is no demurrer in the case at bar. There is no bill of exceptions. There is no report of the case by the trial judge. The findings of fact made by the trial judge, not being incorporated in a report or bill of exceptions, are no part of the record for consideration by this court. Cressey v. Cressey, 213 Mass. 191. Powdrell v. DuBois, 274 Mass. 106, 108, 109, and cases there collected. In the absence of such facts no matter of law decisive of the case is apparent on the record. Styrnbrough v. Cambridge Savings Bank, ante, 22. It is manifest that the appeal is not founded upon an order for judgment upon a case stated. The case is not properly before us on appeal. Mathews v. Hathaway Baking Co. 284 Mass. 328. Palumbo v. Bambini, 295 Mass. 427. Mercadante v. Aldorasi, 295 Mass. 596. Bourget v. Holmes, 297 Mass. 25.

Appeal dismissed.