AMERICAN MUTUAL LIABILITY INSURANCE COMPANY vs. OLD COLONY TRANSPORTATION COMPANY, INC.

AMERICAN MUTUAL LIABILITY INSURANCE COMPANY vs. OLD COLONY TRANSPORTATION COMPANY, INC.

1 Mass. App. Ct. 837

July 31, 1973

The defendant's substitute outline bill of exceptions was filed May 22, 1972. The clerk, on August 23, 1972, sent notice in accordance with Rule 74 of the Superior Court (1954) that "unless within thirty days hereafter . . . an affidavit is filed with the clerk that the bill of exceptions has been presented by a party to the proper justice for allowance, the bill of exceptions will be dismissed and judgment . . . will be entered as though no exceptions had been filed." On Friday, September 22, 1972, the clerk, acting as directed by the same rule, dismissed the bill of exceptions. Being ripe for judgment, the case went to judgment at 10:00 A.M. on Monday, September 25, 1972, by operation of Rule 79 of the Superior Court (1954). The trial judge was thereafter without power to allow the defendant's motion, filed September 26, 1972, to file the affidavit of presentment, to set aside the dismissal of the bill of exceptions, and to vacate judgment. Higgins v. First Natl. Stores, Inc. 340 Mass. 618

Page 838

(1960). Let an entry be made that the case went to judgment on September 25, 1972.

So ordered.