Opinion
May 10, 1971.
Maurice H. Kramer for the defendant.
Joseph G. Prone, for the plaintiff, submitted a brief.
This is an action on a judgment in which there was a finding for the plaintiff. The plaintiff's original action was commenced in the Municipal Court of the City of Boston by trustee process, with an ad damnum of $7,500. The writ in the earlier case stated that the action was for "money due under a contract in writing." The earlier declaration recited a debt "for work and materials . . . according to the account hereto annexed." The plaintiff filed no bond. See G.L.c. 246, § 1, as amended through St. 1961, c. 158. The trial judge denied the defendant's motion to dismiss for alleged noncompliance with c. 246, § 1, with the notation "Heard and upon facts now apparent on record denied." No further specification of facts or reasons appears in the original papers in the earlier case. The defendant now contends (1) that the former judgment is void because no bond was filed and (2) that under c. 246, § 1, the trial court had no jurisdiction. The Appellate Division correctly ruled that, in the circumstances disclosed in the earlier case and on the basis of the writ, no bond was required. In the earlier case there was no attempt to review by report to the Appellate Division the denial of the motion to dismiss. The declaration (despite what was said in Buono v. Nardella, 344 Mass. 257, 258-259) could have been amended to make the declaration conform with the writ, so far as now appears. See Tennessee Plastics, Inc. v. New England Elcc. Heating Co. Inc. 345 Mass. 575, 577-578.
Order dismissing report affirmed.