Opinion
November 2, 1946.
The case was submitted on briefs.
G.H. Young, for the plaintiff.
F.F. Resendes, for the defendant.
The papers transmitted to this court were improperly transmitted and must be struck from the files of this court. This action of contract was brought in a District Court. There was a finding for the plaintiff. Upon a report to the Appellate Division the finding was vacated and a new trial ordered. The plaintiff claimed an appeal to this court and the appeal was entered in this court. This appeal was dismissed. The court said, "The decision of the Appellate Division was not a 'final decision' from which alone an appeal to this court lies. A new trial must be had before the case can be brought here. The appeal must be dismissed. G.L. (Ter. Ed.) c. 231, § 109." Acushnet Hospital Association v. Acushnet, 318 Mass. 781. Thereafter there was a trial before the judge of the District Court who made a new finding of damages. There was, however, no report to the Appellate Division and consequently no decision by the Appellate Division. The papers have been transmitted to this court apparently on the theory that there was an appeal to this court, but no further appeal was claimed or entered and none could have been for there was no "final decision" of the Appellate Division from which an appeal would lie.