Universal Film Exchanges, Inc. v. Riff

In re Petition to Establish. The plaintiff in an action of contract sought to recover moneys due it under an account annexed. The answer is a general denial and a plea of payment. At the close of the trial the plaintiff filed requests for rulings, certain of which the court allowed, denying the remainder. The court found for the defendant. *144Thereafter the plaintiff filed a motion for a new trial which was heard and denied by the court. The plaintiff claimed to be aggrieved by the refusal of the court to grant a new trial; setting forth among other reasons, that a subsidiary finding of fact by the court was inconsistent with the general finding for the defendant. The plaintiff submitted a report which was disallowed by the court “on the grounds that questions of law which might have been raised at the trial on the merits were not preserved, and they cannot be raised as of right on a motion for new trial.” Thereafter the plaintiff filed a Petition to Establish the report and an accompanying affidavit. This affidavit was made by counsel for the plaintiff. It stated the history of the case as recited above, in relation to the pleadings filed and the disposition by the judge. The oath taken by counsel was that "the foregoing statements subscribed by him were true” referring to the statements in the affidavit.

The Petition to Establish does not contain an allegation that the report conforms to the truth, as is required by Rule 32 of “Rules of the Municipal Court of the City of Boston for Civil Actions” (1952), and the petition is therefore insufficient. Lasell v. Director of the Division of Employment Security, 325 Mass. 23, 25.

The draft report contains many statements which are not in the Petition to Establish it, and there is no verification by oath of these statements in the draft report. Rule 32 further provides that “No party shall be allowed to establish the truth of any such allegations if he has failed to comply with the requirements herein prescribed.”

A petition to establish a report is strictissimi juris. [See: Paul v. Norumbega Park — Totem Pole Corp., p. — supra.

Petition denied.