The opinion
Kass, J.
(concurring). It is difficult to take satisfaction in the result to which precedent presses us in this case. Strike one, the draft report which was timely filed, idles for eight to nine months in the court files (it was apparently not called to the trial judge’s attention until shortly before he settled and signed it); strike two, the District Court clerk fails in his duty under the last sentence of Dist.Mun.Cts.R.Civ.P. 64(c) to notify the parties in the case that the trial judge has not acted on the draft report; and, lo, strike three, after three months of inaction the appellant is out on his ear. On a comparative basis the appellant has exhibited greater diligence and done more work than was produced by the court system, but the very institution which has stumbled summons the fortitude to dump the appeal, which had some merit.
Our decision is out of tune with such cases as Schulte v. Director of the Div. of Employment Security, 369 Mass. 74, 79-80 (1975), Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 273-274 (1978), and Vyskocil v. Vyskocil, 376 Mass. 137, 140 (1978), which distinguish between *292 time requirements that have the flavor of a statute of limitations and lesser procedural requirements which allow procedural repairs if, as here, there has been a misfire in other parts of the appellate machinery. See and compare Points East, Inc. v. City Council of Gloucester, 15 Mass. App. Ct. 722, 724 (1983).
Those cases were written in the context or spirit of the relatively modem mies of appellate procedure. The procedural mold from which Appellate Division procedure is cast is the old bill of exceptions in actions at law. See Mooney v. Jud’s Home Insulation Co., 368 Mass. 809, 810 (1975); Walker v. Board of Appeals of Harwich, 388 Mass. 42, 45 (1983). Accordingly, it is probably correct to apply, as we have, the tripwire cases decided under the old procedure.
The case presents the occasion for recognizing, however, that the vestigial procedure which still governs appeals to the Appellate Division is unfamiliar to much of the bar and, as such, beset with traps. Litigants will be better served when Dist.Mun.Cts.R.Civ.P. 64 is amended so that appeals to the Appellate Division travel in the same manner as that which the mies of appellate procedure prescribe.