Hackney v. Butler
| Decision Date | 30 October 1959 |
| Parties | Mabel F. HACKNEY, executrix, v. Walter BUTLER. Mabel F. HACKNEY v. Kenneth A. JACKSON and Viola V. Jackson. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John T. Quirk, Jr., Springfield, for plaintiff.
Frederick S. Pillsbury, Springfield, for defendant Butler.
George W. Leary, Springfield, for defendants Jackson.
Before WILKINS, C. J., and WILLIAMS, COUNIHAN, WHITTEMORE and CUTTER, JJ.
These actions of tort, tried together with a third action not before us, arise out of an accident or series of accidents on January 20, 1954, allegedly due to negligent operation of automobiles. There were directed verdicts for the defendants on February 1, 1956. On February 21 the time for filing the plaintiff's bill of exceptions was extended to June 1. On May 18 the docket in each case shows the filing of the plaintiff's motion for further extension of time to October 1. The motions themselves are stamped as filed on that date and bear the assent of the defendants. There being nothing on the docket or on the motions to indicate allowance, judgments for the defendants were entered on June 4. On September 19 the plaintiff presented for allowance to the trial judge 'motions to vacate judgment,' filed July 2, alleging that the cases had not been ripe for judgment because the motions for extension of time to October 1 had been allowed on or about May 18, 'though the action then actually taken by the court is not shown on the docket.' On September 19 the 'motions to vacate judgment,' the motions for extension of time to October 1, and subsequent motions to extend time to December 1 were heard by the trial judge, who, on November 16, allowed all the motions. Each motion for extension of time to October 1 was indorsed, 'Allowed nunc pro tunc 5/18/56.'
At the hearing on the motions no evidence was introduced, but the plaintiff filed an affidavit of the clerk and of the second assistant clerk 1 reading as follows: 'It is not an uncommon practice in this court for a motion for extension of time within which to file a bill of exceptions to the Supreme Judicial Court, where such motion is assented to by all parties, to be presented after filing to a clerk of this court, sometimes in the presence of a judge and sometimes not in the presence of a judge, for the clerk to take the motion before the court at the convenience of the presiding judge without the presence of the attorney who was offering the motion, and for such a motion to be indorsed, after it is allowed by the court, and returned to the file without further action on the part of the attorney who has brought the motion.' The plaintiff's counsel stated to the court that on or about May 18 he handed the motions for extension of time to October 1 to one or another of the three clerks named in the affidavit who at that time was on his way to court to act in some session of the Superior Court and to be in the presence of a judge then sitting, but not the judge who presided at the trial. The plaintiff's counsel argued that it would be improbable in these circumstances for the clerk having these motions in hand not to have presented them to the judge then sitting; that the clerk could have presented them to a judge, had them allowed, and failed to make the indorsement of such allowance on the motions and the proper entries on the docket; and that if these were the facts, there were clerical errors.
1. We first consider the cases as 'motions to vacate judgment.' The affidavit and the statement of the plaintiff's counsel were an insufficient basis for the allowance of the motions. The plaintiff does not even penetrate the realm of conjecture with her contention that the motions for extension of time were allowed before June 4 or that there was a clerical error in failure to make entries on the docket. The affidavit at most showed the existence of a practice of the clerks in the county to perform favors for the bar which would be efficacious if carried through, but which, in the event of failure to conform, could not supersede the statutory requirements. The statement of counsel was a complete refutation that there had been in fact any presentation of the motions to any judge, much less an allowance by him. The judgments entered on June 4, accordingly, must stand notwithstanding the plaintiff's contention that the allowance of the motions was matter of discretion. The judge had no discretion to act contrary to those provisions of G.L. c. 231, § 113, inserted by St.1945, c. 328, which read: 'If, through inadvertence, a party who has duly claimed exceptions failed to file a bill of exceptions within said twenty days or within such further time as may have been allowed, the presiding justice may, before final judgment, upon motion after notice and hearing, allow a bill of exceptions to be filed and may allow such bill of exceptions.' If, as contended by the plaintiff, the trial judge has settled that the time was extended on or about May 18 from June 1 to October 1, the affidavit and statement of counsel did not warrant such a finding. This is not a case where the docket set forth an incorrect situation. There is, therefore, no occasion for the application of the principle of such a case as Hathaway v. Congregation Ohab Shalom, 216 Mass. 539, 542-543, 104 N.E. 379. The facts disclosed relating to the filing of the bill of exceptions rebut any presumption that the time for its filing had been duly...
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