Alpert v. Mercury Pub. Co.

• Decision Date: 03 July 1930
• Citation: 172 N.E. 223,272 Mass. 43
• Parties: ALPERT v. MERCURY PUB. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 43

172 N.E. 223

ALPERT

v.MERCURY PUB. CO.

Supreme Judicial Court of Massachusetts, Bristol.

July 3, 1930.

Exceptions from Superior Court, Bristol County; Wilford D. Gray, Judge.

Proceedings by George J. Alpert against the Mercury Publishing Company. Judgment adverse to respondent, and he excepts.

Exceptions sustained.

H. W. Radovsky and D. R. Radovsky, both of Fall River, for petitioner.

E. L. Marchant, of New Bedford, for respondent.

RUGG, C. J.

This is a petition to vacate a judgment entered in favor of the defendant on discontinuance by the plaintiff of his action of tort. It is a proceeding separate from the original action and is brought under G. L. c. 250, §§ 14-20. Wrinn v. Sellers, 252 Mass. 423, 425, 147 N. E. 899. That action was brought early in 1927, was entered in court, issue was joined without claim of trial by jury, the case was marked by the plaintiff for trial on the civil list without jury, was in order for hearing on December 6, 1927, and the defendant was prepared for trial, when the plaintiff, the present petitioner, made a motion that the case be transferred to the list of cases for trial by jury. That motion after hearing was denied. The plaintiff thereupon immediately filed a discontinuance of that action and brought a second action for the same cause, claiming therein a trial by jury. It is alleged in the present petition that the ‘discontinuance was filed in order to enable your petitioner to bring a new suit for the same cause of action, and to claim a trial by jury.’ The second action was dismissed on a plea in abatement by order entered on May 1, 1928, exceptions in which have been overruled in the case just decided, Alpert v. Mercury Pub. Co., 265 Mass. --, 172 N. E. 221. Pending the argument and decision on those exceptions, the present petition was brought. It is the third proceeding brought against the defendant by the plaintiff growing out of one cause of action.

Every right of the plaintiff was preserved to him when his first action came on for trial. Whether, after that action was on the jury waived list for hearing and the defendant was ready for trial, the plaintiff justly was entitled to a jury trial, in the light of his contention that through mistake and inadvertence he had failed seasonably to exercise his right to claim such trial, was a matter to be determined on his motion to that end filed and heard on December 6, 1927. The decision was against him on that motion. Thereupon he deliberately, without accident, mistake, or inadvertence discontinued his action and pursued that discontinuance and permitted it to ripen into final judgment on the first Monday of January, 1928. His purpose in that discontinuance and in suffering that judgment, as set forth on the present record, was to overcome the decision of the court in denying his motion for a jury trial by wiping out his first action and beginning a second action for the same cause, wherein he could claim as of right a...