Bailey v. Edmundson

• Decision Date: 19 May 1897
• Parties: BAILEY v. EDMUNDSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

168 Mass. 297

46 N.E. 1064

BAILEY v. EDMUNDSON.

Supreme Judicial Court of Massachusetts, Middlesex.

May 19, 1897

COUNSEL

John H. Hurley, for appellant.

P.J Casey, for appellee.

OPINION

FIELD C.J.

This is a writ of error to the superior court. The defendant in error pleaded in nullo est erratum. The case was heard by a single justice of this court, who affirmed the judgment of the superior court, and the defendant in error appealed to the full court. But on filing the plea the case should immediately have been transferred to the full court, as the plea raises only issues of law. Pub.St. c. 150, § 7; Tufts v. Newton, 119 Mass. 476.

The error assigned is that the judgment of the superior court was rendered upon the default of the original defendant, now the plaintiff in error, within four legal days after the default. It appears from the record that the original defendant was defaulted in the superior court on November 27, 1895, and the court assessed the damages, as we infer, on that day. The judgment was entered on December 2, 1895. November 27th was Wednesday; the next day was Thursday, which was Thanksgiving Day, a legal holiday; November 29th was Friday; November 30th, Saturday; December 1st, Sunday; and December 2d Monday. If Thanksgiving Day and Sunday are not counted excluding the day of the default, there were but two days from the day of the default before December 2d. If Thanksgiving Day and Sunday are counted, there were four days from the day of the default before December 2d. See Pub.St c. 160, § 4. Pub.St. c. 171, § 1, is as follows: "Every judgment shall be entered as of the last day of the term in which it is rendered unless there is an express order of the court for the entry thereof on some other day. The court may enter up judgment upon default any time after four days from the day of the default." We assume that, in reckoning the four days under this section of the statute, neither Sunday nor Thanksgiving Day was to be counted. But, under this section of the statute, judgment was entered upon default as of the last day of the term, by a general order of the court, whether four days from the day of the default had elapsed or not. It was only when judgment upon default was entered in term, and before the last day of the term, that it was required that four days should elapse after the default before the judgment should be entered. See Pub.St. c. 167, §§ 45-47; Herring v. Polley, 8 Mass. 114; Portland Bank v. Maine Bank, 11 Mass. 204; Coolidge v. Cary, 14 Mass. 115. By St.1885, c. 384, § 2, terms in the supreme judicial court and in the superior court were abolished, and business may be transacted at any time. Section 11 is as follows: "At any time after a default has been entered against the defendant in an action at law in either of the courts, the plaintiff may after four days have judgment entered as of course by the clerk, without any further order." Section 12 is as follows: "The courts respectively may make general rules authorizing or directing in such manner and subject to such provisions as they may think proper the entry of judgment by the clerk without any further order in all or any of the cases in...