
    
      Northern District
    
    No. 5349
    MIDDLESEX COUNTY NATIONAL BANK v. JOHN B. COLE
    (March 22, 1960)
    
      Present: Gadsby, P. J., and Northrup.
    
      Case tried to Loschi, J., in the First District Court of Eastern Middlesex.
    No. 1286 of 1959.
   Gadsby, P. J.

The question to be decided by this report is whether or not the trial judge erred in allowing the defendant’s motion to dismiss the draft report for failure on the part of the plaintiff to comply with Rule 28 of the District Courts.

The facts briefly are as follows:

On June 2, 1959, the original of the plaintiff’s draft report was mailed to the court and a copy to the defendant’s attorney and the trial justice. According to the time stamp, the original was filed by the court at 8:30 a.m., June 3, 1959. The copies addressed to the attorney for the defendant and the trial justice were received sometime on June 3, 1959, but there was no evidence as to what time of day.

Rule 28 of the District Courts reads as follows:

“A .copy of such draft report shall be delivered or mailed, postage prepaid by the party requesting the report to the trial justice and to the adverse party before the close of the next business day after such filing.”

An interpretation of this rule is set forth in the case of Famigletti v. Neviackas, 324 Mass. 70. This decided in substance, that the report must be filed in Court before the notice of its filing is received.

In Checkoway v. Cashman Brothers Co., 305 Mass. 470, the Court said in regard to exceptions at 471, “The filing must in truth have taken place before the notice is given and the notice must state that the filing has taken place as a definitely past fact.”

Greb & Eskin of Boston, for the Plaintiff.

Paul J. Donaher, George R. Toothaker of Boston, for the Defendant.

In the present case, we cannot tell whether the notice was received after the filing or before the filing. Counsel should be careful to protect himself by making sure that the filing has taken place before any notice is sent.

There being no prejudicial error in the action of the trial judge, the report is dismissed.  