Home JULIUS RANDALL vs. MATHEW KEMLER.

321 Mass. 753

October 30, 1947

Appeal dismissed. The judge on March 14, 1947, found for the plaintiff in an action of summary process. If the action of the judge is to be regarded as an order for judgment, Sasserno v. Sasserno, 240 Mass. 583 ; Watts v. Watts, 312 Mass. 442 , an appeal filed on April 4, 1947, must be dismissed because it was not filed within twenty days after the entry of the order as required by G. L. (Ter. Ed.) c. 231, Section 96, Burnham v. Dollard, 269 Mass. 530 . Keljikian v. Star Brewing Co. 303 Mass. 53 . We do not think the action of the judge was the entry of judgment, but, if it were, the present appeal would not lie. Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460 . Perhaps it is not improper to point out that there was no error committed by the trial judge. The notice to quit was sufficient to terminate the tenancy for the reasons stated in Walker v. Sharpe, 14 Allen 43 , Selig v. McCarthy, 281 Mass. 106 , and U-Dryvit Auto Rental Co. Inc. v. Shaw, 319 Mass. 684 .

Home MARGARET T. TWOMEY, executrix, vs. CITY OF WORCESTER.

321 Mass. 753

November 4, 1947

Appeal dismissed. We have already construed the petition in this case as a petition for a writ of review under G. L. (Ter. Ed.) c. 250, Section 22. Twomey v. Worcester, 320 Mass. 758 (rescript). By that rescript we dismissed the petitioner's attempted appeal from an order of the Superior Court dismissing her petition. Within ten days after the filing of the rescript in the Superior Court the petitioner filed a motion in that court that the court "grant her a report of the evidence or a new trial." Still later she filed an elaborate motion to amend her first motion "or to amend the petition for a bill of review." In her motion to amend she sets up alleged facts pertaining to her original action and evidence alleged to have been given and errors alleged to have been made at the trial of that action. The judge denied both the motion to amend and the original motion for "a report of the evidence or a new trial." The petitioner has filed, in ambiguous language, an attempted appeal, which, however, she says in her brief is from the denial of her motion to amend. The order denying the petitioner's motion to amend was not appealable under G. L. (Ter. Ed.) c. 231, Section 96. That order was not an "order

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decisive of the case founded upon matter of law apparent on the record" and was not an order of either of the other classes of orders made appealable by that section.