Kalman v. Board of Aldermen

It is obvious from the face of the plaintiffs’ complaint that the action was brought in the wrong county. See G. L. c. 139, § 2. Therefore, the allowance by the judge of the defendants’ motion to dismiss based, in part, on Mass.R.Civ.P. 12(b)(3), 365 Mass. 755 (1975), was not error. Nothing in Attorney Gen. v. Industrial Natl. Bank, 380 Mass. 533 (1980), requires a judge to dispose of a motion to transfer prior to ruling on a motion to dismiss. Because the judgment does not precisely indicate the ground upon which the complaint was dismissed, the judgment is vacated and another judgment dismissing the complaint pursuant to Mass.R.Civ.P. 12(b)(3) for lack of venue shall be entered. Id. at 538.

So ordered.