Opinion
November 30, 1973.
The case was submitted on briefs.
Thomas F. McCarthy Howard J. Alperin for the petitioner.
Robert H. Quinn, Attorney General, James P. McCarthy, Assistant Attorney General, for the respondents.
This is a petition for a writ of certiorari and relief under G.L.c. 211, § 3. It appears that the respondent Krupinski had brought a small claims action in the Municipal Court of the City of Boston against the petitioner on which there was a hearing with a finding in favor of Krupinski and the issuance of an execution. Following this finding and issuance the court denied a motion of the petitioner to revoke the order issuing the execution and for leave to appeal to the Superior Court for a jury trial. This petition was thereafter filed in the Supreme Judicial Court for Suffolk County and the single justice entered an order sustaining a demurrer to which exception was taken. There was no error. The petitioner failed to protect his rights to remove his case to the Superior Court under the provisions of G.L.c. 218, § 23, prior to its amendment by St. 1973, c. 748, § 2. Since his claim for a jury trial was not seasonably filed, the judge who denied the motion to revoke the order issuing the execution and for leave to appeal acted properly within his discretion. See discussion in McLaughlin v. Municipal Court of the Roxbury Dist. of Boston, 308 Mass. 397, 402 (1941). Having failed to remove the case to the Superior Court under the provisions of G.L.c. 218, § 23, the petitioner had waived his right to a trial by jury. See Foster v. Morse, 132 Mass. 354, 355 (1882); H.K. Webster Co. v. Mann, 269 Mass. 381, 385 (1939).
Exceptions overruled.