The action by Central Hospital, Inc., having become moot on appeal, the judgment appealed from is vacated with notation that the decision is not on the merits, and the action is remanded to the Superior Court with directions to dismiss the complaint. See Reilly v. School Comm. of Boston, 362 Mass. 689 , 696 (1972). The companion case, commenced as Superior Court, Suffolk County, C.A. No. 3164 (1974), and all proceedings pending therein in any court, are ordered transferred to this court for the Commonwealth. The action, as so transferred, having become moot, it, together with all such pending proceedings, is dismissed with notation that the decision is not on the merits.
[Note 1] Charles Solari & others vs. Health Facilities Appeals Board & others.
Absent an abuse of discretion, there is no error in denying a petition under G. L. c. 211, Section 3. In his brief the plaintiff states, "If my appeal had to be based on an abuse of discretion, I do not think that I could mount one, because I cannot bring myself to think that the ... [single justice's] decision, here appealed, constitutes an abuse of discretion." We agree with the plaintiff that the denial of his petition was not an abuse of discretion.
We have, nonetheless, examined the records before the Appeals Court. All the issues raised by the plaintiff before us are presently pending in that court. We think, therefore, the plaintiff's substantive rights are protected through the normal appellate process.
However, in our review it appeared that there is no appeal presently pending from an assessment of two hundred and fifty dollars costs on March 29, 1978. We think the plaintiff is entitled to bring new proceedings in the county court to determine the correctness of that assessment. The plaintiff should serve the Attorney General instead
of the present defendent in his new petition.
The denial of the petition is affirmed with leave to file a new petition as described herein.