Fairbanks v. Beard

• Decision Date: 30 November 1923
• Citation: 141 N.E. 590,247 Mass. 8
• Parties: FAIRBANKS v. BEARD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

247 Mass. 8

141 N.E. 590

FAIRBANKS

v.BEARD et al.

Supreme Judicial Court of Massachusetts, Essex.

Nov. 30, 1923.

Action by A. Loetta Fairbanks against Daniel B. Beard and others. The petition was dismissed, and a motion to vacate judgment denied, and plaintiff appeals. Order dismissing petition affirmed.

Plaintiff, pro se.

S. H. Hollis, of Lynn, for defendants.

RUGG, C. J.

[1][2] The record presented in this case consists of a ‘motion to remain on the docket’ filed September 21, 1922. On October 18, 1922, this order was made: ‘Motion allowed. Case to be dismissed April 1, 1923, if not otherwise disposed of prior to that date.’ A ‘motion to extend time’ was filed on March 23, 1923. That motion was denied on March 29, 1923, and on April 1, 1923, the case was dismissed. There was filed on June 22, 1923, ‘motion for order to vacate judgment.’ On the record under the same date follows this entry: ‘Motion to vacate judgment denied. H. A. D. J. S. C.’ The last three letters are an appropriate abbreviation for ‘Judge of the Superior Court.’ If it be assumed that the three preceding letters are the initials of a judge, they are of no effect. Judicial action ought to be manifested and authenticated by the writing of the distinctive characterization in words by which he was commissioned, by which he is known and distinguished from others and which constitutes his name, or by a record of such action made by the clerk. Webber v. Davis, 5 Allen, 393, 397; Chapman v. Limerick, 56 Me. 390, 393. See cases collected and reviewed in Finnegan v. Lucy, 157 Mass. 439, 32 N. E. 656. Private obligations may stand on a different footing. Sanborn v. Flagler, 9 Allen, 474. The last six letters of that entry must be disregarded. They form no part of the record. See Norton v. Musterole Co. Inc., 235 Mass. 587, 589, 127 N. E. 431. The other words of the entry have meaning and are covered by the general attestation of the clerk. Hence it appears that, on the same date, the motion to vacate judgment was denied. An appeal was filed on June 25, 1923.

[3] No evidence is reported. There are no findings of facts and no rulings of law to be found on the record. It cannot be determined whether any of the assertions of facts made in the several motions were found to be true or false. That was wholly within the province of the trial court. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 84 N. E. 129. Those assertions cannot be accepted as true on such an appeal as this. Commonwealth v. Russ, 232 Mass. 58, 70, 122 N. E. 176.

[4] The dismissal on April 1, 1923, was a final judgment. Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92.

[5] The disposition of a motion to vacate judgment rests in the sound discretion of the court. The mere refusal to grant it raises no question of law. Ryan v. Hickey, 240 Mass. 46, 47, 132 N. E. 718 and cases there collected; Boston Elevated Railway v. Leighr, 241 Mass. 582, 135 N. E. 880;Maker v. Bouthier, 242 Mass. 20, 24, 136 N. E. 255.

It is assumed in favor of the appellant that this motion to vacate judgment was entered as a separate proceeding. But whether it was or not, since no question of procedure has been raised, the case has been considered on its merits. Maker v. Bouthier, 242 Mass. 20, 136 N. E. 255.

No error of law or abuse of discretion is shown on this record. The case is covered by numerous authorities. Rose v. Harrison, 228 Mass. 261, 117 N. E. 313;Cobb. v.Hale, ...