Opinion
December 30, 1949.
A.C. McCarthy, for the appellant, submitted a brief.
No argument nor brief for the appellee.
Appeal dismissed. This is an appeal from a final decree after rescript accompanying an order dismissing an earlier appeal of the defendant for failure to prosecute. The record consists of a copy of the order of dismissal, the rescript, a motion for entry of final decree after rescript, a letter from the defendant's counsel to the assistant clerk of the Land Court, seeking to delay hearing on the motion, the final decree after rescript, the defendant's appeal, and nothing more. There is no finding of facts. The only question open is whether as matter of law the decree could rightly have been entered on the pleadings. Dondis v. Lash, 283 Mass. 353, 354. We have no means of knowing what transpired at the hearing. The burden is on the appealing party to show error. He has not sustained that burden. As it is an appeal from a final decree after rescript, we do not affirm the decree but dismiss the appeal. Carilli v. Hersey, 303 Mass. 82, 85-86.