Opinion
July 15, 1980.
Present: Cowdrey, P.J., Forte Zoll, JJ.
The Honorable Samuel E. Zoll was a member of the panel at the hearing on this matter, but took no part in the final decision of this case which was issued subsequent to his resignation from the Appellate Division.
Practice, Civil, Appellate Division: Contents of Draft Report; Briefs.
Report of court's ruling on motion to vacate judgment. Action heard in the Cambridge Division by Sherman, J.
Joseph S. Ayoub for the plaintiff.
John F. Finnerty for the defendant.
This tort action was commenced in the Superior Court Department and, upon transfer pursuant to G.L.c. 231, § 102C, was received by the Cambridge Division of the District Court Department on December 20, 1976.
On January 7, 1977, counsel for the defendant appeared at the call of the trial list. When this case was called for trial, it was dismissed by the court due to the failure of plaintiff's counsel to appear. Judgment entered for the defendant on January 21, 1977.
The docket indicates that no notice of the trial date was ever sent to plaintiff's counsel.
Sometime prior to December 18, 1978 the plaintiff filed a motion to vacate judgment. The docket does not indicate when this motion was filed, but on December 18, 1978 the court vacated judgment. The defendant claims to be aggrieved by this order.
The report is to be dismissed for the defendant's failure to comply with the procedural requirements of Dist./Mun. Cts. R. Civ. P., Rule 64 governing the contents of a report to the Appellate Division. The report fails to state that it contains all the evidence material to the question under consideration, and this Division is thus free to assume that the report is incomplete. Comfort Air Systems, Inc. v. Cacopardo, 370 Mass. 255, 259 (1976). The report is in fact incomplete for the plaintiff's motion to vacate judgment and the accompanying affidavit have not been reported and are not contained in the report. The Appellate Division is confined to the report and cannot consider matters not contained therein. Tranfaglia v. Security Nat'l Bank, 53 Mass. App. Dec. 25 (1973). Although the missing documents are attached to the defendant's brief, briefs cannot be used to introduce evidence which is not included in the report. Household Finance Corp. v. Vogel, 362 Mass. 885 (1972).
Report dismissed.