Bennett v. Powell
| Decision Date | 27 October 1933 |
| Parties | BENNETT v. POWELL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Walter Perley Hall, Judge.
Action by Charles A. Bennett against Charles S. Powell. An entry of nonsuit and judgment for defendant was reversed by a single justice on plaintiff's petition for a writ of error, and defendant brings exceptions.
Exceptions overruled.
L. Withington and B. Morton, both of Boston, for plaintiff.
E. R. Anderson and R. B. Owen, both of Boston, for defendant.
This is a petition for a writ of error. It was heard before a single justice who made findings of fact of this tenor: The petitioner was the plaintiff in an action at law brought by him against the defendant in error as defendant. A motion to non-suit the the plaintiff for failure to answer interrogatories propounded by the defendant was filed and that motion was on the list for disposition. Those interrogatories were drawn in violation of St. 1929, c. 303, § 1, G. L. (Ter. Ed.) c. 231, § 61, in that they were more than thirty in number. This illegality having been brought to the attention of counsel for the defendant, he agreed with counsel for the plaintiff that the motion to non-suit might go off the list without hearing and the clerk of courts was so informed. Nevertheless, through error and mistake and notwithstanding this agreement, this entry was made on the docket: The plaintiff was not informed of this entry, did not answer the interrogatories, and was non-suited, and the cause went to judgment in favor of the defendant in accordance with the rules of court. Counsel for both parties were ignorant of the docket entry above quoted; they took depositions in California in April, 1930 and a further deposition more than a year after the non-suit. The fact of the non-suit was not discovered by the plaintiff or his counsel until July 23, 1931, more than one year after the cause had gone to judgment. The finding is explicit to the effect that the ‘allowance of the motion to non-suit the plaintiff was due to a misunderstanding or mistake of the clerk, or by reason of other accident or mistake.’ The single justice was of opinion that the case should be considered on its merits, and that in the interests of justice the erroneous entry of non-suit and the judgment entered should be reversed and the case dealt with as if such motion had not been allowed and judgment had not been entered. Order was made accordingly. Exceptions of the defendant in error bring the case here.
It is plain that in the original action there was a miscarriage of justice. The plaintiff brought his action. The defendant answered. The issues thus raised have never been tried. The defendant filed interrogatories to the plaintiff which were in violation of St. 1929, c. 303, § 1, G. L. (Ter. Ed.) c. 231, § 61, in that they were larger in number than was allowable without special order of the court. No such special order was made. Those interrogatories ought to have been dismissed on motion. There was no waiver of that right by the plaintiff. Instead parties agreed in effect that action on those interrogatories be suspended, and the clerk was notified accordingly. In direct contravention of that arrangement, the entry above recited was made, speedily resulting in a judgment for the defendant. The plaintiff was in no default in not knowing about this record. Nothing had occurred to lead him to suppose that any action would be taken or any docket entry made. No decision or order was impending of which he ought to take cognizance. There was no obligation on the part of the plaintiff or his attorney to examine the record. The rule stated in Rosenbush v. Westchester Fire Ins. Co., 227 Mass. 41, 43, 44, 116 N. E. 396, is not applicable. There was no neglect on the part of either in not discovering the mistake made on the record. Both parties co-operated for more than a year after the entry of the mistaken record in preparation for trial of the case on the merits. The plaintiff had a right to rely implicitly on the ordinary course of legal procedure tending toward a trial on the merits. Then he discovered that judgment had been entered against him on a default, all through mistake and in derogation of his rights.
No other form of relief seems to be open to the plaintiff. The time had expired before he learned of the judgment within which he might have brought a petition to vacate the judgment. G. L. (Ter. Ed.) c. 250, § 15; Karrick v. Wetmore, 210 Mass....
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