Opinion
July 27, 1982.
Present: Walsh, P.J., Greenberg Lenhoff, JJ.
Practice, Civil, Request for retransfer: Motion for leave to file request late; Dist./Mun. Cts. R. Civ. P., Rule 59.
Report of court's dismissal of defendant's report. Action heard in the Northampton Division by Turcotte, J.
Thomas P. Vincent for the plaintiff.
David R. Kaplan for the defendant.
This action was transferred to the District Court of Hampshire from the Superior Court pursuant to G.L.c. 231, § 102C. On June 18, 1981, a judgment was entered against the defendant. Notice of the judgment was received by defendant's counsel on June 22, 1981. A timely request for retransfer should have been filed with the District Court by July 2, 1981. In fact, the request was mailed and received by the Court on July 7, 1981, five days beyond the requisite 10 day period.
A motion for leave to file the request late, treated by the trial judge as a motion for transfer, was denied. The defendant claims to be aggrieved by this action of the trial judge.
The statute in question is clear and unambiguous in its terms that "(t)he request for retransfer. . . shall be filed with the clerk of said district court within ten days after notice of the finding or decision. "The language has been held as mandatory and not directory in numerous cases. Brandywine v. Kardon, 32 Mass. App. Dec. 86 (1965); Griffin v. Powers, 1 Mass. App. Ct. 846 (1973). Only the filing of a motion pursuant to Dist./Mun. Cts. R. Civ. P., Rule 59 to amend judgment or an appeal taken pursuant to G.L.c. 231, § 108 within the ten day period stays the ultimate axe from its fall on the aggrieved party. Davis, et al. v. Bennett, Mass. App. Dec. (1982); Orasz v. Colonial Tavern, 356 Mass. 131 (1974).
Accordingly, the trial judge's denial of the retransfer was proper. There being no other error, this report is hereby dismissed.