Bishop v. Hannigan

This case is here on report filed by the plaintiff, which report was allowed May 1, 1940. May 15, 1940, three copies of the report were filed in the Court of origin. Defendant’s brief was duly filed. The case appeared on the trial list for argument in this division July 10, 1940; upon call there, when the case was reached, no one appeared for the plaintiff and no brief had then been filed for' the plaintiff. The defendant had duly filed a brief and was ready to argue the case when it was reached. No one appearing therein for. the plaintiff, the plaintiff was then non-suited..

Rule- XXXII of the Rules of the District Court provides that “If- a party whose claim for a report has been allowed or established shall not prosecute the same promptly by preparing the necessary papers or otherwise as herein (in said Rules) provided, the Appellate Division may, upon motion or of its own initiative, order the cause to proceed . . . or take such action as justice may require.”

*395Under Rule XXXI of the aforesaid Rules, the plaintiff, as appealing party, should have filed four copies of his brief. If he had done this his appeal would have been held in this Court. But in the absence of any brief for the plaintiff and his failure to appear the only action applicable to such a situation is to enter a non-suit.

As the Superior Court may provide a rule for the dismissal of cases for want of prosecution, Cheney vs. Boston & Maine, 246 Mass. 502, so may this division. Whiting Milk Co. vs. O’Connell, 277 Mass., 570 at 571, 572. Report dismissed.