Beserosky v. Mason

• Decision Date: 27 November 1929
• Citation: 269 Mass. 325,168 N.E. 726
• Parties: BESEROSKY v. MASON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 325

168 N.E. 726

BESEROSKY

v.MASON.

Supreme Judicial Court of Massachusetts, Bristol.

Nov. 27, 1929.

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

Petition by Simon Beserosky to vacate a judgment obtained by Henry Mason and to stay execution. From an adverse decision in the district court, petitioner appealed to the superior court, which ordered the petition dismissed, and petitioner brings exceptions. Exceptions overruled.S. Rosenberg, of New Bedford, for petitioner.

T. F. O'Brien, of New Bedford, for defendant.

RUGG, C. J.

This petition to vacate a judgment and to stay execution was brought in a District Court under G. L. c. 250, §§ 14-20. It was there decided adversely to the petitioner. On appeal it was heard in the Superior Court where an order was entered that the petition be dismissed. The petitioner's exceptions bring the case here. Of necessity this petition was brought in the District Court because the judgment sought to be vacated was rendered in that court. It is assumed that the petitioner rightly might appeal to the Superior Court under G. L. c. 231, § 97, notwithstanding St. 1922, c. 532, § 8, whereby provision is made for appellate divisions of district courts. Lynn Gas & Electric Co. v. Creditors' National Clearing House, 235 Mass. 114, 126 N. E. 364.

The original judgment here sought to be vacated was entered in an action of contract. The defendant in that action, the present petitioner, appeared by attorney and filed an answer pleading a general denial and payment. At the trial in the Superior Court the petitioner offered to show that in the declaration of the plaintiff in that action it was alleged that the defendant owed him a specified sum ‘for goods sold and delivered by the plaintiff to the defendant according to the account’ annexed; that the goods in controversy in that action were purchased by the petitioner from one Benjamin Mason and were paid for in full; that no account was due from the present petition to Benjamin Mason when the latter became bankrupt; and that neither the trustee in bankruptcy of Benjamin Mason nor the assignee of the accounts counts of the bankrupt ever demanded payment of an account or debt from the petitioner. The petitioner further offered to show that at the trial in the District Court of that action he did not appear because informed by his attorney that his presence was not required;that that trial was continued for one week, at which time the petitioner again failed to appear because he supposed that his presence was not required, and he was thereupon defaulted and judgment entered against him. There was evidence tending to show that the petitioner was notified by his attorney of the evidence offered at the first day of the trial of the original action and was told that he must be present on the day to which the trial was continued, and that the petitioner said he would not be present. It was agreed that the matters raised on the present petition were urged and argued before the trial...