Patterson v. Ciborowski Et Ux‪.‬

RUGG, C. J. The finding of the trial Judge in this action of contract in a district court was for the plaintiff. Thereafter the defendants, desiring to take the case to the appellate division, filed a draft report. That draft report was disallowed by the trial Judge in these words: This report is disallowed because of the second sentence of the second paragraph on Page Two. That sentence was that He [the plaintiff] further testified on cross-examination that the oil burner was to be a Super Oil Heater to be installed according to law and Fire Prevention Regulations and so as to give the defendants satisfaction and that if the defendants were not satisfied the oil burner was to be serviced so that the defendants would be satisfied. Thereupon the defendants filed a petition to establish the report in the form originally presented by them. Hearing was had before one Judge of the appellate division of the Western district assigned to pass upon the questions raised by this petition. There is printed in the record what appears to be a stenographic report of the evidence received at this hearing. The printing of this evidence was unnecessary and improper because the Judge who conducted the hearing rightly set forth the questions of law raised before him in his decision upon the petition. That Judge found and decided that the plaintiff did not testify as alleged in the sentence sought to be incorporated in the report. He dismissed the petition to establish the report and signed his decision to that effect. No other signature is appended to it. That decision was filed on October 4, 1930. The defendants filed on October 7, 1930, an appeal from the order dismissing their petition to establish a report and all other matters of record to the Supreme Judicial Court.