Small Claims Standards: 8:04 Motions to allow apparently late filed appeals

The Administrative Office of the Trial Court issues these Standards to assist judges, clerk-magistrates and other personnel of the District Court, Boston Municipal Court, and Housing Court Departments in implementing recently amended Trial Court Rule III, Uniform Small Claims Rules (effective January 1, 2002).

The court shall permit appeals to proceed only if the appealing party can demonstrate that the appeal was filed within ten days from actual receipt of notice.

Commentary

The clerk-magistrate's office must accept for docketing any notice of a claim for a trial by judge or jury of six, even if it appears that the appealing party is filing after the deadline of ten days from receipt of judgment has expired. Morales v. Commonwealth, 424 Mass. 1010 (1997); Davis v. Tabachinick, 425 Mass. 1010 (1997). The clerk-magistrate shall return to the appealing party who appears to be filing late the filing fees and appeal bond, and the clerk-magistrate shall inform the party that he or she must file a motion, with notice to the opposing party, to allow the appeal to go forward. A judge must hear the motion. Uniform Small Claims Rule 10(a).

The court should allow an appeal to proceed only if the appealing party can demonstrate that the appeal was filed within ten days from actual receipt of notice. There is no authority to enlarge the time for filing beyond ten days.