Home HENRY L. SAWYER CO. vs. S. K. BOYAJIAN.

310 Mass. 825

October 30, 1941

Order dismissing report affirmed. This action of contract, brought in a District Court, resulted in a finding for the plaintiff in 1935. Since then the case has been before this court three times upon appeals by the defendant. 296 Mass. 215 ; 298 Mass. 415 ; 303 Mass. 311 . The defendant has now appealed from an order of the Appellate Division dismissing a report of the denial by the trial judge of a motion -- and of rulings requested in connection therewith -- "to stay, abate, or reverse proceedings in the above-entitled action, and/or for such other or further order as in law may thereto appertain," in which the ground assigned is that the action "was brought and prosecuted (as appears on the record -- see Report on Defendant's Motion to Dismiss, Docket No. 33; 1936 A. S. 2327; etc.) by a corporation operating as a collection agency" which has been forbidden "from bringing or prosecuting such actions." The motion was verified by affidavit of the defendant. No other evidence is reported and there are no express findings of fact. Copies of the docket entries and of some other papers on file in the District Court were transmitted to this court. See G. L. (Ter. Ed.) c. 231, Section 135. Denial of the motion to dismiss the action on the ground that it was brought by such a corporation was sustained in 296 Mass. 215 (referred to in the motion as 1936 A. S. 2327) for the reason that the proceedings were not void on this ground. Page 218. It was said in that case however, that the "case at bar is distinguishable from

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those wherein objection is made to further proceedings conducted by an unauthorized attorney." See also Gill v. Richmond Co-operative Association, Inc. 309 Mass. 73 , 75-76. So far as the present motion rests upon the same ground as the motion to dismiss, it stands no better than that motion. And there is nothing in this report -- including the report on the motion to dismiss referred to in the present motion -- or in any of the papers transmitted to this court, tending to show that at the time the present motion was filed proceedings in this action were being "conducted by an unauthorized attorney." The denial of the present motion is not shown to have been erroneous. And the rulings requested and denied either were contrary to the decision in 296 Mass. 215 , or were inapplicable to the case. There was no intimation in 303 Mass. 311 , that such a motion should be granted in the trial court. It is unnecessary to consider whether on any other ground the denial of the motion or of the requested rulings was right.