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06/09/78 RUTHERFORD H. PLATT & ANOTHER v.

June 9, 1978

RUTHERFORD H. PLATT & ANOTHER
v.
COMMISSIONERS OF HAMPSHIRE COUNTY & ANOTHER.



This case is before us on a report (see Mass.R.Civ.P. 64, 365 Mass. 831 [1974]) by a Judge of the Superior Court, who has made certain findings and rulings but has not yet ordered the entry of judgment. The only question which has been argued by the parties concerns the jurisdiction of the Superior Court. The action was commenced by two residents and taxpayers of Northampton to challenge and have set aside a conveyance by which the defendant county commissioners purported to transfer a parcel of land owned by the county to the defendant American Legion Post No. 28 Home, Inc., for a nominal consideration. We hold that the Superior Court has jurisdiction to entertain the action, not (as the plaintiffs contend) under the concurrent equity jurisdiction of that court granted by G.L. c. 214, § 1, but under the statutory jurisdiction granted by G.L. c. 35, § 35. Although § 35 by its terms vests jurisdiction only in the Supreme Judicial Court, that jurisdiction may be exercised concurrently by the Superior Court under the provisions of G.L. c. 213, § 1A. See Brooks v. Registrar of Motor Vehicles, 1 Mass. App. Ct. 78, 79 n.1 (1973). We decline to pass on the merits of the case prior to entry of judgment because the questions presented have not been briefed or argued by any party. It is our hope that, if the case returns to this court by way of an appeal from a final judgment, we shall have the benefit of somewhat more detailed factual development and an appendix that includes such papers as the pleadings and exhibits. The case is remanded to the Superior Court for further proceedings not inconsistent herewith.

So ordered.

19780609

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