JOHN X. FOLEY vs. WALTER B. MCGONIGLE, trustee.

WILLIAM L. DONNELLY vs. DISTRICT COURT OF NEWTON.

3 Mass. App. Ct. 746

May 9, 1975

Donnelly appeals from the dismissal of his petition for a writ of certiorari which sought to require a District Court judge to certify the record of a summary process action (in which Donnelly was the defendant) to the Superior Court for a trial de novo. G. L. c. 239, Sections 5 and 6. The case is before us on the petition and the return thereto. Donnelly filed a timely claim of appeal in the summary process action, requesting that the requirement of posting bond or security therewith be waived as permitted under G. L. c. 239, Section 5. The District Court

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ruled that it was "not satisfied that . . . [Donnelly] has a defense which is not frivolous and therefore the motion is denied. Bond required with appeal . . . in [the] principal amount of $500." Thereafter Donnelly filed the petition which is now before us. The Superior Court heard the case on the record of the District Court as submitted, and ruled that the evidence before the latter court was sufficient to substantiate its rulings and that there was no error of law apparent on the face of the record. We have examined the entire record and are in complete agreement with the conclusions of the Superior Court. On the facts disclosed by the return, the requirement that Donnelly post a bond in the sum of $500 was both reasonable and proper. The requirement was not so onerous that it operated "unreasonably to prohibit, directly or indirectly . . . [a] meritorious appeal" (Damaskos v. Board of Appeal of Boston, 359 Mass. 55 , 64 [1971]); to the contrary, it was a proper exercise of the court's duty "to discourage frivolous and vexatious appeals." Ibid. We do not pause to consider other issues purportedly raised in Donnelly's brief and reply brief as they are beyond the scope of the petition and, in any event, are wholly lacking in merit.

Order dismissing petition affirmed.