Burt v. Hodsdon

• Decision Date: 01 July 1922
• Citation: 242 Mass. 302,136 N.E. 108
• Parties: BURT v. HODSDON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

242 Mass. 302

136 N.E. 108

BURT

v.HODSDON.

Supreme Judicial Court of Massachusetts, Plymouth.

July 1, 1922.

Exceptions from Land Court, Plymouth County; C. T. Davis, Judge.

Proceeding by Curtis H. Burt against Ida M. Hodsdon for a writ of review to review a judgment rendered against petitioner by default during his illness. Findings in favor of the petitioner, and defendant brings exceptions. Exceptions overruled.

Wm. Shaw McCallum, of Boston, for petitioner.

Alton W. Eldredge, of Boston, for respondent.

BRALEY, J.

By G. L. c. 250, § 22:

‘After the entry of final judgment in a civil action, the court in which the judgment was entered may, upon petition grant a writ of review. If judgment was rendered in the absence of the petitioner and without his knowledge, the petition shall be filed within one year after the petitioner first had notice of the judgment; otherwise, within one year after the judgment was rendered. In the supreme judicial or the superior court, the petition shall be filed in the county where the judgment was rendered.’

It is settled that the granting of the petition rests substantially in the sound discretion of the court, the exercise of which will not be set aside unless positive error of law appears. Sylvester v. Hubley, 157 Mass. 306, 309;Marsch v. Southern New England Corporation, 235 Mass. 305.

The facts recited in the record show that the petitioner, an attorney at law, was the defendant in a suit to foreclose a tax lien under St. 1915, c. 237, §§ 3-14, now G. L. c. 60, §§ 64-75, in which he had entered his appearance and offered to redeem. The plaintiff moved that the case be assigned for trial, and notice of the motion was sent by mail to the petitioner's office. But just before the filing of the motion he had suddenly been taken ill on the street and removed to a hospital where he still remained when the petition for review was heard. The family, which had been told by the physician in attendance that he could not be interviewed about any matters of business, notified his office associates of these conditions, but neglected to authorize them to attend to any of his personal or professional affairs. The motion being presented, no one appeared in opposition, and the plaintiff and the court, acting without any knowledge of his illness, had the case assigned for a day certain, and notice accordingly was sent to him by the recorder or clerk of the court. The case came on for hearing, and the defendant was defaulted. The recorder, as required by the rules...