Davis v. Nat'l Life Ins. Co.

• Decision Date: 03 March 1905
• Citation: 73 N.E. 658,187 Mass. 468
• Parties: DAVIS et al. v. NATIONAL LIFE INS. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 468

73 N.E. 658

DAVIS et al.

v.NATIONAL LIFE INS. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 3, 1905.

Appeal from Superior Court, Suffolk County.

Action by one Davis and others against the National Life Insurance Company. From a judgment sustaining a petition to vacate a final judgment, defendant appeals. Reversed.

Williams & Copeland, for plaintiffs.

A. E. Denison and W. Stanley Campbell, for defendant.

KNOWLTON, C. J.

This suit was brought on August 23, 1897, but because of proceedings in equity affecting the rights of the parties, pending in the Circuit Court of the United States, it remained without active prosecution and without the filing of an answer until June 10, 1901. It was then dismissed, under the rule of the superior court, on the calling of the docket. On February 19, 1902, a final decree was entered in the suit in the Curcuit Court of the United States dismissing the bill. Until after that time the plaintiffs, according to the averments of their petition, had no knowledge of the dismissal of the action. They then filed a petition or motion in the superior court, averring these facts and others, and asking to have the case restored to the docket. An order of notice was issued on this petition, and the court, after a hearing, ordered the order of dismissal to be vacated, and the case to be brought forward, and placed on the trial list. The defendant appealed from this last order, and the question is whether, on the face of the record, it appears to be erroneous.

The order that the action be dismissed was an order for a final judgment. Under rule 27 of the superior court judgment is to be entered on the first Monday of every month, under a general order of the court, in all cases ripe for judgment. We understand that such a general order was then in effect, and under the authority of Pierce v. Lamper, 141 Mass. 20, 6 N. E. 223, we have no doubt that a final judgment was entered in the case on the first Monday of July, 1901. This judgment can be vacated or set aside only on some proceeding authorized by law. Pierce v. Lamper, ubi supra; Barnes v. Smith, 104 Mass. 363;Mason v. Pierson, 118 Mass. 61;Blanchard v. Ferdinand, 132 Mass. 389;Wood v. Payea, 138 Mass. 61;Radclyffe v. Barton, 154 Mass. 157, 28 N. E. 148.Darrow v. Darrow, 159 Mass. 262, 34 N. E. 270,21 L. R. A. 100, was a case which was not ripe for a final judgment, and there was no attempt to dispose of it finally. The order was merely to strike it from the docket of cases in which early action might be expected. A final judgment may be set aside on an appeal seasonably taken for the correction of errors of law apparent on the face of the record, or by a petition to vacate a judgment, or by a writ of review under Rev. Laws, c. 193, §§ 15, 21, or by a writ of error, if there are grounds for any of these proceedings. A judgment may also be set aside upon a motion by the prevailing party, filed within three months, in accordance with the provisions of Rev. Laws, c. 193, § 14. The plaintiffs filed an application which is entitled ‘Motion,’ and which, in asking that the case be restored to the docket, uses the word ‘move’ instead of ‘pray.’ Can this properly be construed as a petition to vacate the judgment, under Rev. Laws, c. 193, § 15? The superior court, in issuing an order upon it, calls it a petition, and refers to the plaintiffs as petitioners. The kind of notice ordered, namely, personal service...