FRANK J. ROBINSON vs. THE WM. BROWN & SONS CO.

FRANK J. ROBINSON vs. THE WM. BROWN & SONS CO.

301 Mass. 316

September 27, 1938 - October 25, 1938

Worcester County

Present: FIELD, C.J., DONAHUE, QUA, COX, & RONAN, JJ.

No appeal lies to this court from a decision of an appellate division of a district court which was not final.

TORT. Writ in the First District Court of Northern Worcester dated June 4, 1937.

In the District Court, Warfield, J., found for the defendant and reported the case to the Appellate Division for the Western District.

W. T. Woodrow, for the defendant.

G. M. Gray, for the plaintiff, submitted a brief.

BY THE COURT. This action of tort to recover compensation for personal injuries was brought in a district court. There was a finding for the defendant and a report to the Appellate Division. Thereafter the defendant made a motion that the report be dismissed for failure to prosecute it in accordance with the rules of the court. The plaintiff made motions for an extension of time for filing his brief and for "an extension of time for filing copies of the final report and other necessary papers to the appeal of said case." See Rule 28 and Rule 31 of the Rules of the District Courts (1932). The Appellate Division denied the defendant's motion and allowed the plaintiff's motions, and filed a decision: "Prejudicial error found, new trial ordered."

Page 317

The defendant claimed an appeal from the denial of its motion, the allowance of the plaintiff's motions and the decision of the Appellate Division.

The appeal must be dismissed. It is here prematurely. The orders and decision of the Appellate Division were all interlocutory. There has been no "final decision" of the Appellate Division, from which alone an appeal to this court lies. G. L. (Ter. Ed.) c. 231, Section 109. Real Property Co. Inc. v. Pitt, 230 Mass. 526 . Matson v. Sbrega, 250 Mass. 138 . Endicott Johnson Corp. v. Hurwitz, 284 Mass. 378 . See Buchannan v. Meisner, 279 Mass. 457 , 458-459.

Appeal dismissed.