Home ALFRED P. DONOVAN & another vs. ENDICOTT JUNIOR COLLEGE.

334 Mass. 704

May 31, 1956

Interlocutory decrees affirmed. Final decree affirmed. Decree dismissing appeal affirmed with costs of appeal. This bill in equity to enjoin interference with a right of way was referred to a master, who filed a report, which is not printed in the record. On January 4, 1954, the defendant filed an appeal from (1) the allowance of the plaintiffs' motion to confirm the master's report, (2) the plaintiffs' motion to expunge, (3) the allowance of a motion to strike the defendant's objections from the master's report, (4) the denial of the defendant's motion to recommit, and (5) any and all decrees entered thereunder. None of the enumerated documents appears in the record. On February 11, 1954, a decree was entered confirming the master's report, reciting the existence of the right of way, permanently enjoining the defendant from interfering with the plaintiffs' use, and dismissing the defendant's counterclaim. This was decisive of the whole case, and was a final decree. Kingsley v. Fall River, 280 Mass. 395 , 398. Cummings v. Tolman, 292 Mass. 58 , 60. Vincent v. Plecker, 319 Mass. 560 , 564. On February 15, 1954, the defendant filed a "motion to revoke the interlocutory decree filed February 11, 1954," and on March 3, 1954, filed a "motion as supplement to motion to revoke the interlocutory decree filed February 11, 1954." These motions were denied on March 15, 1954, and on April 5, 1954, the defendant appealed from "the finding of the court" denying each motion. Also on March 3, 1954, the defendant appealed from the decree of February 11, 1954. On June 18, 1954, the defendant appealed from the order of the court allowing the plaintiffs' motion to expunge the defendant's motion to have the evidence reported. On March 25, 1955, the plaintiffs filed a motion to dismiss the defendant's appeals, which was allowed on April 12, 1955. On May 2, 1955, the defendant appealed from the order dismissing the defendant's "appeal." On the same day the defendant filed a motion for revocation of the order dismissing the defendant's "appeal." The motion was denied on May 16, 1955, and on May 31, 1955, the defendant appealed "from any order alleged to be made May 16, 1955." The defendant has filed two briefs, one arguing the merits, which are not open, and the other urging this court to vacate the order dismissing the appeals. On this confused record, only a part of which we have described, no error appears.

Home CRANDALL DRY DOCK ENGINEERS, INC. vs. GLOUCESTER MARINE RAILWAYS CORPORATION.

334 Mass. 704

May 31, 1956

Exceptions overruled. This is an action of contract to recover a balance due for materials and services furnished by

Page 705

the plaintiff to the defendant. The plaintiff filed an affidavit of no defence. G. L. (Ter. Ed.) c. 231, Section 59B. The defendant filed a counter affidavit which the plaintiff contends was insufficient. The plaintiff alleges an exception to the denial of its motion for judgment, and argues that there is presented an order decisive of the case founded upon matter of law apparent on the record. There was no error. The denial of the motion for judgment presents merely an interlocutory matter. Lawrence v. Old Silver Beach, Inc. 303 Mass. 377 , 378. Scola v. Director of the Division of Employment Security, 326 Mass. 180 , 181. Thayer Co. v. Binnall, 326 Mass. 467 , 471. On the merits there likewise would be no error. Under G. L. (Ter. Ed.) c. 231, Section 59B, the judge, on these facts, was not required to enter an order for judgment, but could, as he did, advance the case to the short list for trial.