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12/29/77 DEMOULAS SUPER MARKETS v. PETER'S MARKET

December 29, 1977

DEMOULAS SUPER MARKETS, INC.
v.
PETER'S MARKET BASKET, INC.



Middlesex. Civil action commenced in the Superior Court on November 17, 1977. A motion for a preliminary injunction was heard by Mitchell, J. The case was considered without briefs or oral argument.

Hale, C.j., Grant, & Armstrong, JJ.

SYLLABUS BY THE COURT

Practice, Civil, Review of interlocutory action, Appeal.

The opinion of the court was delivered by: Armstrong

A party who seeks to appeal from an interlocutory order under the second paragraph of G. L. c. 231, § 118, must initiate his appeal by filing a notice thereof in the lower court within the time limit specified in rule 4 of the Massachusetts Rules of Appellate Procedure and must thereafter proceed in accordance with the provisions of rules 9 and 10 respecting assembly of the record in the lower court and the docketing of the appeal in this court. [751-754]

This case purports to come before us as an interlocutory appeal under the second paragraph of G. L. c. 231, § 118, as appearing in St. 1977, c. 405. *fn1 It is one of many cases in which parties claiming to be aggrieved by orders entered in the Superior Court on applications for preliminary injunctions have attempted to enter appeals in this court without first filing a notice of appeal in the lower court and without prior compliance with the rules relative to assembly of the record and docketing. The purpose of this opinion is to state our views as to the procedure which must be followed in prosecuting interlocutory appeals under the new statute. *fn2

The intent of the Legislature in enacting St. 1977, c. 405, was to eliminate a significant difference between our appellate practice and that of the Federal courts. In Foreign Auto Import, Inc. v. Renault Northeast, Inc., 367 Mass. 464, 468 (1975), the Supreme Judicial Court observed that the incorporation into our practice of the Federal rules of civil and appellate procedure did not bring with it the Federal practice of allowing interlocutory appeals as of right from orders relating to preliminary injunctions; that that practice was based not on rule, but on a statute, 28 U.S.C. § 1292(a)(1) (1970); and that the Commonwealth had no corresponding statute. The second paragraph of G. L. c. 231, § 118, inserted by St. 1977, c. 405, tracks the language of § 1292(a)(1) and was obviously intended to make our practice conform to Federal practice in that respect.

In Federal practice the procedure for taking an appeal from an interlocutory order that is appealable as of right is precisely the same as that for taking an appeal from a final judgment. 9 Moore's Federal Practice par. 110.21 (2d ed. 1975). There is nothing in our statutes or rules which necessitates or justifies a different practice. See Rollins Environmental Serv. Inc. v. Superior Court, 368 Mass. 174, 179 (1975). Thus, a party who appeals under the second paragraph of G. L. c. 231, § 118, from an order "granting, continuing, modifying, refusing or dissolving a preliminary injunction, or refusing to dissolve a preliminary injunction," must initiate his appeal by filing his notice thereof in the lower court within the time limit specified in Mass.R.A.P. 4, 365 Mass. 846 (1974), measured from the date of entry of the order appealed from. He must thereafter proceed in accordance with the provisions of Mass.R.A.P. 9, 365 Mass. 851 (1974), and 10, as amended effective February 24, 1975, 367 Mass. 919, respecting assembly of the record in the lower court and the docketing of the appeal in this court. See Westinghouse Elec. Supply Co. v. Healy Corp., ante, 43, 60-61 (1977). An appeal entered directly in this court without compliance with those procedures has no standing and will be dismissed. *fn3

Two other features of interlocutory appeals under 28 U.S.C. § 1292 (a)(1), should be noted. First, such an appeal is permissive, not mandatory, in the sense that a person aggrieved by an order granting or denying a preliminary injunction is not foreclosed by his failure to appeal from it, but may raise the issues presented by the interlocutory order (assuming they are of continuing relevance) on his appeal from the final judgment. 9 Moore's par. 110.18. Second, it is a general rule that the filing of a timely and valid notice of appeal from such an order divests the lower court of authority to proceed further with respect to the matters involved in the appeal, except in aid of the appeal. 9 Moore's par. 203.11. The filing of such an appeal, however, does not divest the lower court of jurisdiction to proceed with the action on the merits. Ex parte Natl. Enameling & Stamping Co., 201 U.S. 156, 162 (1906). Phelan v. Taitano, 233 F. 2d 117, 119 (9th Cir. 1956). Janousek v. Doyle, 313 F. 2d 916, 920-921 (8th Cir. 1963). DePinto v. Provident Security Life Ins. Co., 374 F. 2d 50, 51 n.2 (9th Cir.), cert. denied, 389 U.S. 822 (1967). United States v. Chicago, 534 F. 2d 708, 711 (7th Cir. 1976). Lastly, it should be observed that, by the terms of the third paragraph of G. L. c. 231, § 118, the filing of the appeal "does not suspend the execution of the order which is the subject of the . . . ." *fn4

Interlocutory appeals authorized by the 1977 amendment are beginning to be entered in this court in substantial numbers. In some, motions have been filed for speedy hearing of the appeal. Our general practice, subject to exception when particular circumstances necessitate, has been and will be to deny such motions. Given the present disequilibrium in appellate dockets *fn5 and the preference customarily accorded criminal appeals (see Mass.R.A.P. 31, 365 Mass. 879 [1974]), a contrary policy would present a real danger that few (if any) appeals from final judgments in civil cases could reach our hearing lists. We do not think that the Legislature intended that we prefer interlocutory appeals as a class over appeals from final judgments, especially in the light of the availability of relief from a single Justice by the more efficient procedure set out in the first paragraph of § 118. *fn6

Appeal dismissed ...


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