If by reason of death, sickness, resignation, removal, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may, on assignment by the Chief Justice of such court, or in case of disability of such Chief Justice, by the senior justice present and qualified to act, perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.
Mass. R. Civ. P. 63
Reporter’s Notes:
(1996): With the merger of the District Court rules into the Mass. R. Civ. P., minor differences which had existed between Mass. R. Civ. P. 63 and Dist./Mun. Cts. R. Civ. P. 63 have been eliminated.
(1973): Rule 63 closely follows Federal Rule 63 with the following additions: (1) The enumerated disabilities have been expanded specifically to include resignation and removal; (2) An assignment mechanism has been added.
Rule 63 permits any other judge regularly sitting in or assigned to the court in which the action was tried to perform the duties of the judge who by reason of some disability is unable to perform his own duties after a verdict has been returned or after he has filed findings of fact and conclusions of law. The rule provides, however, that only by assignment may the successor judge perform the duties of the disabled judge.
If the successor judge cannot perform his substituted duties satisfactorily either because he did not preside at the trial or “for any other reason”, he may in his discretion grant a new trial. See St. Louis Southwestern Ry. Co. v. Henwood, 157 F.2d 337 (8th Cir.1946); Brennan v. Grisson, 198 F.2d 532 (D.C.Cir. 1952 ).