Gardner v. Butler

• Decision Date: 17 October 1906
• Citation: 78 N.E. 885,193 Mass. 96
• Parties: GARDNER v. BUTLER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 96

78 N.E. 885

GARDNER v. BUTLER et al.

Supreme Judicial Court of Massachusetts, Berkshire.

October 17, 1906

COUNSEL

Jos. Ward Lewis, for plaintiff.

John F Noxon, for respondents.

OPINION

HAMMOND J.

The writ upon which the attachment was made was returnable on February 27, 1904, and on that day was duly entered. The defendant Johnson made no appearance, and on March 1, 1904, a default was entered.

At the trial of the present case the plaintiff contended that the original suit went to judgment on March 4, 1904, that being the Friday next after the default. The record discloses no such judgment. On the contrary it shows that the default of March 1st was removed on April 11th, in accordance with an agreement of the parties, and the defendant Johnson appeared that on June 29th the plaintiffs Butler et al. filed a notice of an assignment for trial on July 9th; that on the last mentioned day the defendant, not appearing, was again defaulted; that on July 15th judgment was entered on this last default; and that on August 8th of the same year the execution was issued. The record is simple and consistent with itself. No judgment was entered upon the first default.

The plaintiff in the present case contends, however, that even if no entry of judgment appears upon the record, still in law the case went to judgment on March 4th, upon the first default, and the clerk should have made a record of it. The judgment, whenever made, must be by the order of the judge, and the duty of the clerk is simply to record this order. The trial judge found that no specific order for judgment was made on March 1 or March 4, 1904. Nor was there any evidence of any standing or general order of the district court that judgment should be so entered except so far as such order might be inferred from the existence of 'the custom * * * [of the court] * * * in a civil action for liquidated damages, where the defendant is defaulted for nonentry of an appearance, for the clerk of said court to assess the damages and enter judgment on the Friday following the day of default; and that it is the rule of said court that all such actions are ripe for judgment upon default.' This is far from a finding that the rule required judgment to be entered.

The court held that there was no such rule of the court requiring the entry of judgment upon default at any particular time and so imperative that in the absence of any...