Rule 81.Applicability of Rules

Rule 81 is where the ruleset explains itself. Subsection (h) has no civil counterpart and is the most useful paragraph in Part X.

Where the rules do not reach

These rules apply to all civil proceedings in the courts they govern except proceedings pertaining to the writ of habeas corpus and proceedings pertaining to the disciplining of an attorney. Clauses (2) and (4) through (8) are deleted, and the Comments record that (a), (c), (f) and (g) were amended by deleting proceedings not applicable to the domestic relations courts.

In the excepted proceedings, so far as not governed by statute, practice follows the course of the common law, as near to these rules as may be — with one express carve-out: depositions shall not be taken, nor interrogatories served, save by order of the court on motion, with notice, for good cause shown.

Writs abolished

Subsection (b) abolishes nine: audita querela, certiorari, entry, error, mandamus, prohibition, quo warranto, review, and scire facias. Where relief was formerly obtainable under any of them, procedure follows these rules. Rule 60(b) abolishes the parallel post-judgment writs and petitions to vacate judgment.

Two general provisions

Subsection (d) resolves a clash between a statute and these rules: the terminology of an applicable statute, if inconsistent with these rules, is taken to mean the analogous device or procedure proper under these rules. Subsection (e) fills gaps — where no procedure is specifically prescribed, the court proceeds in any lawful manner not inconsistent with the Massachusetts Constitution, these rules, or any applicable statute. The official text of (e) reads "When no procedure us specifically prescribed"; that is how it is printed, on mass.gov as well as in the compilation, and it is reproduced above as it appears.

The translation table

Subsection (h) defines nine terms for applying language borrowed from the civil rules:

• Clerk includes Register of Probate;
• Justice includes Judge of Probate Court;
• Chief Justice includes the Chief Judge of Probate Court;
• Superior Court includes Probate Court;
• "complaint" includes "petition" and "libel";
• "jury" and "verdict", and the rules applicable to jury cases, apply only to courts having jurisdiction of jury trials;
• third-party actions are not applicable to domestic relations matters;
• references to actions, remanded cases, defenses and party capacities not recognized in domestic relations practice as set out in Rule 1 are inapplicable;
• in the Probate Court, forms, where prescribed, are required in lieu of pleadings.

Several of those explain things a reader meets earlier in the ruleset. Item (1) reconciles Rule 79, which speaks of the clerk, with Rule 77(b) and (d), which speak of the register. Item (6) explains why Rule 54(a) still mentions a general verdict when Rule 38 is deleted. Item (7) explains why Rule 7(a) lists third-party pleadings that Rule 14's deletion leaves without a home. And item (9) is the reason a Probate Court case often begins on a printed form rather than with a drafted complaint.