In support of the plaintiff's motion under G. L. c. 231, Section 59 (as amended through St. 1955, c. 674, Section 1), for immediate entry of judgment there was filed an instrument signed by one Bothwell stating that he had been "duly sworn" and deposing to facts adequate to establish the plaintiff's case. The instrument was attested by the certificate of a notary that Bothwell appeared and "stated that he ha[d] read the foregoing affidavit . . . and that the facts stated . . . are true to his own knowledge." No counter affidavit was before the trial judge who allowed the motion. The instrument was a sufficient affidavit under Section 59 and, read as a whole, adequately established that Bothwell had sworn to the truth of the facts stated. See Murphy, petitioner, 321 Mass. 206 , 213; Carroll Hunnewell, Inc. v. Southboro Constr. Corp. 343 Mass. 667 , 669. Cf. Cook Borden & Co. Inc. v. Commonwealth, 293 Mass. 174 , 179-181 (jurat attached to mechanic's lien claim not signed by notary public).
This is the second frivolous appeal in this case. See 347 Mass. 773 . There exists no error of law apparent on the record or any other ground for which an appeal is authorized by G. L. c. 231, Section 96. This is a palpable play for time. Double costs are to be assessed under G. L. c. 211, Section 10.
On any rational view of the evidence, which we need not detail, relating to a collision involving three motor vehicles, it cannot be said that the plaintiffs' injuries were caused by the negligence of any person other than the defendant Alexander, against whom judgments have been entered. The judge was right in entering verdicts for the defendant Campbell under leave reserved.
[Note 1] Elizabeth A. Davis and William T. Davis.
[Note 2] The companion case is by Joseph Sahakian, administrator, Carol Flansburg and Janice Flansburg.
This bill in equity was brought by a wife, who is living apart from her husband (but not for justifiable cause), against her husband to determine ownership in certain property. The property consists of bank accounts, shares of stock, a parcel of real estate and two automobiles. A master to whom the case was referred filed a report which was confirmed by an interlocutory decree. Thereafter a final decree was entered which awarded one half of the bank accounts and shares of stock to the wife. The basis for the decree was the findings of the master to the effect that the property was jointly owned by husband and wife. The decree was silent as to the real estate and the two automobiles, a 1959 Oldsmobile and a 1937 Chevrolet. The husband appealed. The husband's attack on the master's findings
touching the real estate requires no discussion. This property stood in the names of the husband and wife as tenants by the entirety and the decree left this tenancy undisturbed. That appears to be all that the husband now seeks and he has no cause to complain. The findings of the master adequately support the decree with respect to the ownership of the bank accounts and the shares of stock. The failure of the decree to deal with the two automobiles is challenged by the husband only with respect to the 1959 Oldsmobile, presumably because the value of the 1937 Chevrolet, according to the master, was insignificant. Inasmuch as the master found that the Oldsmobile was jointly owned by the husband and wife, despite the husband's contention that he was the sole owner, this finding must stand; the decree should be modified to so provide. The decree is to be modified in accordance with this rescript, and, as so modified, it is affirmed.