Cohen v. Indus. Bank & Trust Co.

• Decision Date: 25 February 1931
• Parties: COHEN v. INDUSTRIAL BANK & TRUST CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

274 Mass. 498

175 N.E. 78

COHEN

v.INDUSTRIAL BANK & TRUST CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 25, 1931.

Exceptions from Superior Court, Suffolk County; Marcus Morton, Judge.

Action by Samuel Cohen against the Industrial Bank & Trust Company. Plaintiff's motion for judgment was denied, and he brings exceptions.

Exceptions overruled.

Edward M. Dangel, Leo E. Sherry, and J. Jackson Holtz, all of Boston, for plaintiff.

Robert G. Wilson, Jr., of Boston, for defendant.

RUGG, C. J.

The is an action of contract to recover a real estate commission. The defendant was defaulted and the default removed. The defendant was defaulted again on November 7, 1929, when the case came on for trial. On the following day the defendant filed a motion to remove the default, setting forth reasons which might have been found adequate for removal of that default. No further action was taken until January 18, 1930, when the plaintiff filed a motion that the motion of the defendant filed on November 8, 1929, to remove the default of the previous day be dismissed and that judgment be entered as of November 18, 1929. Except for the filing of the notice by the defendant on November 8, 1929, the case was otherwise ripe for judgment on November 18, 1929. On January 23, 1930, the matters came on for hearing and the motion of the defendant of November 8 to remove the default was granted and the case ordered to be tried on the February special jury list. By implication, if not expressly, the plaintiff's motion for judgment was denied. The plaintiff excepted.

This bill of exceptions, although relating to an interlocutory matter and not reported by the trial judge, is now rightly before us, because the case has been tried to a jury, has resulted in a verdict for the defendant, no exceptions appear to have been taken at that trial, and the case seems to be otherwise ripe for final disposition. Brooks v. Shaw, 197 Mass. 376, 378-379, 84 N. E. 110;Weil v. Boston Elevated Railway, 216 Mass. 545-547, 104 N. E. 343;Anti v. Boston Elevated Railway, 247 Mass. 1, 3, 4, 141 N. E. 598.

The sole question for decision is whether the mere filing of these motions was sufficient to prevent the case from going to judgment, or whether the case automatically went to judgment.

Care has been taken that defendants who have been defaulted receive due notice thereof from the clerk of the court. Mandate to that effect was enacted by St. 1917, c. 227, now G. L. c. 231, § 58. This statute has been re-enforced by common law rule 28 of the superior court (1923). By that rule express provision is made governing procedure for removal of defaults whereby notice to the adverse party and affidavit of facts relied on in defence are required to the end that it may appear that a defence in good faith is intended. Although not definitely stated, it is the implication of this rule that the motion to remove a default, if prevented after the day on which it was entered, may be in writing. No time is specified by that rule within which such motion must be made, nor is it required that the affidavit of defence accompany the motion. See also common law rule 20 of the superior court (1923). It is provided by common law rule 56 of the superior court (1923) that no action shall be regarded as ripe for judgment until after four days from a default. No contention could be made that the motion in the case at bar was not seasonably filed. Ample power is conferred upon courts by G. L. c. 231, § 57, to take off a default in the exercise of sound judicial discretion at any time before judgment. Hurnanen v. Gardner Automobile Co., 225 Mass. 189, 114 N. E. 198;Hooton v. G. F. Redmond & Co., Inc., 237 Mass. 508, 513, 130 N. E. 107. The removal of a default by judicial action in cases where there is a substantial defence, and for the promotion of justice, is well recognized as proper.

The contention of the plaintiff, narrowly stated, is that such motion must actually be brought to the attention of the court for affirmative action of some sort before the time when under general rule the case would be ripe for judgment; otherwise, the power of the court to deal with the motion has vanished.

The entry of judgments is governed by statutes and rules, G. L. c. 235, § 1: ‘Judgments in civil actions and proceedings ripe for judgment in the superior court shall, unless the court by general or special order otherwise orders, be entered by the clerk at ten o'clock in the forenoonon the first Monday of each month,’ with exceptions not here material. Similar provision is made as to district by G. L. c. 235, § 2, except that judgments are there to be entered at ten o'clock in the forenoon on Friday of each week. By common law rule 56 of the superior court (1923) judgment in civil actions and proceedings ripe for judgment in Suffolk county shall be entered at ten o'clock in the forenoon on Monday of each week, with exceptions not here material. In view of these controlling provisions, to adopt the contention of the plaintiff would result in rendering the specific power to remove defaults already noted illusory or of little value in many instances. Cases might often go to judgment under that contention before a defaulted defendant in the exercise of all reasonable celerity could bring his motion to the attention of the court and procure some order thereon and return it to the clerk of the court.

It is strongly argued that the case was ‘ripe for judgment’ notwithstanding the mere filing of the motion to take off the default upon the binding authority of certain decisions. The general principle is stated in Lynn Gas & Electric Co. v. Creditors' National Clearing House, Inc., 237 Mass. 505, 507, 130 N. E. 111, 112, in these words: ‘It is not easy to give a universally applicable definition of the term ‘ripe for judgment’ as used in the statute. It has been said in general to be ‘when, under the last entry, the case seems to have been brought to a final determination, and everything seems to have been done that ought to be done before the entry of a final adjudication upon the rights of the parties.’ American Wood Working Machinery Co. v. Forbush, 193 Mass. 455, 457, 79 N. E. 770. In the application of this rule numerous cases have been held ripe for judgment although some matter remained on the surface of the record undisposed of.'

The case of Dunbar v. Baker, 104 Mass. 211, is not relevant to the facts here involved. That decision, as is made clear by Holland v. Martin, 123 Mass. 278, 279, was an interpretation of the effect of U. S. Rev. Sts. § 5106, respecting continuances by reason of the bankruptcy of the defendant. That section provided that ‘no creditor whose debt is provable shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor's discharge shall have been determined; and any such suit or proceedings shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy on the question of the discharge.’ The holding was that, in order to secure a stay under said section 5106, the ‘application of the bankrupt’ must be acted upon by the court, and that filing a paper with the clerk was not enough. See, also, Gray v. Chase, 184 Mass. 444, 451, 68 N. E. 676, and Berry Clothing Co. v. Shopnick, 249 Mass. 459, 463, 144 N. E. 392. In Somerville v. Fiske, 137 Mass. 91, it appeared that Fiske and others, having brought a petition for reduction of a betterment assessment, were allowed before trial to amend their petition, terms being reserved, and that upon trial the assessments were reduced whereby under the...