
    
      Southern District
    
    THOMAS F. KILROY v. EDWARD M. JOYCE
   Welch, J.

This is an action of contract wherein the plaintiff seeks to recover $350 allegedly due as the balance on a written contract. The answer was a general denial. A declaration in set-off was filed by the defendant.

The report is not properly before us. After a finding for the plaintiff the defendant filed a draft report on which there was a hearing and later the trial judge filed a report which differed substantially from the draft report.

The correct course for the judge was to disallow the report if it were found that it did not properly set forth the facts in the case and the questions of law involved. The judge should have set forth succinctly the facts and reasons which impelled that conclusion. Patterson v. Ciborowski, 277 Mass. 260, 265. The defendant then could have filed with this Division a petition to establish the report. District Court Rule 28.

There has also been filed with this Division, a motion by the defendant to strike from the record and docket the alleged report which was filed by the Judge. That motion is not properly before us. Until the report is allowed or if disallowed until a petition to establish the report is filed, all motions are to be heard by the Justice of the Court in which the action was brought. District Court Rule 28, ninth paragraph.

The case is recommitted to the trial judge for action in accordance with this opinion. Attention is called to District Court Rule 31, second paragraph, which designates the size of the papers intended for use before the Appellate Division.  