CAPE ANN SAVINGS BANK vs. LINO BALZARINI & others.

CAPE ANN SAVINGS BANK vs. LINO BALZARINI & others.

2 Mass. App. Ct. 891

November 19, 1974

The plaintiff brought this bill of interpleader in the Superior Court to determine the disposition of the excess proceeds from the foreclosure sale of real estate under a mortgage given to the plaintiff by the defendants Balzarini. The defendant Lewis was one of nine named as claimants possibly entitled to share in the distribution of those proceeds. An interlocutory decree was entered taking the allegations of the bill as confessed as against Lewis for his failure to appear at the time set for trial. A final decree was entered

Page 892

which provided for the distribution of the proceeds to other claimants and dismissed Lewis' claim. Lewis appealed from the final decree and filed a request for a report of material facts. G. L. c. 214, Section 23, as appearing in St. 1947, c. 365, Section 2. The court refused to make such a report, and Lewis claimed an appeal from such refusal. Such a refusal was neither an interlocutory nor a final decree, and no appeal lay from it. Carilli v. Hersey, 303 Mass. 82 , 87 (1939). Bolster v. Attorney Gen. 306 Mass. 387 , 388-389 (1940). There is no merit to Lewis' only other contention, that the judge "abused . . . [his] discretion by decreeing awards to parties in default and to their attorneys as shown by the docket entries." The appeal from the refusal to make a report of material facts is dismissed. The final decree is affirmed.

So ordered.