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SJC-12267

  BAHIG F. BISHAY   vs.   DISTRICT COURT DEPARTMENT OF THE TRIAL
                               COURT.


                          August 18, 2017.


Supreme Judicial Court, Superintendence of inferior
     courts. Mandamus. Practice, Civil, Action in nature of
     mandamus, Appeal, Bond.


     Bahig F. Bishay appeals from a judgment of the county court
denying, without a hearing, his petition for relief under G. L.
c. 211, § 3, in which he sought relief in the nature of mandamus
requiring the District Court to return an appeal bond to him.
Bishay and his wife, who is also a party to the District Court
proceedings, posted the bond in connection with their appeal
from a final judgment in a summary process action brought by
Merrill Lynch Credit Corporation, now known as Bank of America,
N.A. (bank), pursuant to G. L. c. 239, § 5. The Appellate
Division of the District Court dismissed the Bishays' appeal,
but rejected the bank's argument that the appeal was frivolous.
The Bishays' appeal from that judgment is pending in the Appeals
Court. The Bishays moved in the District Court and in the
Appellate Division that the appeal bond be released to them, as
well as requesting assistance from the Chief Justice of the
District Court. When these efforts proved unsuccessful, 1 Bishay
filed his petition in the county court. We affirm the judgment
denying relief.


     1
       The District Court and the Appellate Division denied
release of the appeal bond on the ground that appellate
proceedings were still pending. The Chief Justice of the
District Court stated that he lacked authority to reverse those
decisions.
                                                                  2


     Bishay has filed a memorandum and record appendix pursuant
to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which
requires Bishay to "set forth the reasons why review of the
trial court decision cannot adequately be obtained on appeal
from any final adverse judgment in the trial court or by other
available means." 2 The rule does not apply here, as the District
Court's and Appellate Division's rulings denying release of the
appeal bond to Bishay were not interlocutory. Nonetheless, it
is clear on this record that Bishay had an adequate remedy in
the ordinary appellate process. Bishay offers no reason why he
could not have appealed to the Appeals Court from the Appellate
Division's denial of his motion for release of the bond or, for
that matter, why the disposition of the appeal bond could not be
addressed in the currently pending appeal. The single justice
neither erred nor abused his discretion by denying extraordinary
relief.

                                   Judgment affirmed.


     The case was submitted on the papers filed, accompanied by
a memorandum of law.
     Bahig F. Bishay, pro se.




     2
       The rule also provides that "[t]he appeal shall be
presented . . . on the papers filed in the single justice
session" and that the petitioner must file a record appendix.
S.J.C. Rule 2:21 (2). Bishay's record appendix does not satisfy
the requirements of the rule, as it omits much of the record
before the single justice. This presents a further reason not
to disturb the judgment.
