Alpert v. Mercury Publishing Co.

• Decision Date: 30 June 1930
• Citation: 272 Mass. 43
• Parties: GEORGE J. ALPERT v. MERCURY PUBLISHING COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

272 Mass. 43

GEORGE J. ALPERT v. MERCURY PUBLISHING COMPANY.

Supreme Judicial Court of Massachusetts, Bristol.

June 30, 1930

October 28, 1929.

Present: RUGG, C.

J., PIERCE, WAIT SANDERSON, & FIELD, JJ.

Practice, Civil Vacation of judgment.

A petition to vacate a judgment is addressed largely but not exclusively to the discretion of the presiding judge; his action should be exercised so as to promote an orderly and proper administration of justice, and not to encourage carelessness ignorance, laxity or finesse of practice in the courts. Per RUGG, C.J.

Neither party to an action in the Superior Court claimed trial by jury. A subsequent motion by the plaintiff for trial by jury was denied. In order to circumvent such denial, he immediately filed a discontinuance of the action and, before judgment was entered therein, commenced another action against the same defendant in the same court and for the same cause. Judgment for the defendant later was entered in the first action. The defendant filed a plea in abatement in the second action on the ground that, when it was commenced, the first action still was pending. The plea in abatement was sustained and the plaintiff alleged exceptions. Pending disposition of the exceptions by this court, the plaintiff brought a petition under G.L.c. 250,

Sections 14-20, to vacate the judgment in the first action. The statute of limitations by then had run against the cause of action.

The petition was allowed; and the respondent alleged an exception. The plaintiff's exceptions in the second action subsequently were overruled. Held, that

(1) The plaintiff was not entitled to the aid of the court in securing relief from the results of his attempt to circumvent the denial of his motion for trial by jury;

(2) The circumstance, that the statute of limitations had run against the plaintiff's cause of action, was not an adequate ground for granting the petition;

(3) In the circumstances, the petition should have been denied, and the respondent's exception must be sustained.

PETITION, filed in the Superior Court on May 7, 1928, to vacate a judgment for the respondent in an action against it by the petitioner.

The petition was heard by Gray, J., it being agreed that the facts alleged in the petition and the answer thereto, with certain exceptions should be taken to be true. Material facts are stated in the opinion. The petition was allowed. The respondent alleged an exception.

E.L. Marchant, for the respondent.

H.W. Radovsky, (D.R. Radovsky with him,) for the petitioner.

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, Sections 14-20. Wrinn v Sellers, 252 Mass. 423 , 425. 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 jury trial." 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, ante, 39. 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...