Hall v. Maloney

• Citation: 168 N.E. 724,269 Mass. 228
• Parties: HALL v. MALONEY.
• Decision Date: 26 November 1929
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

269 Mass. 228

168 N.E. 724

HALL

v.MALONEY.

Supreme Judicial Court of Massachusetts, Barnstable.

Nov. 26, 1929.

Appeal from Superior Court, Barnstable County; Daniel T. O'Connell, Judge.

Action by Gershom D. Hall against John J. Maloney. From an order denying a motion to amend the record of a judgment of dismissal, plaintiff appeals. Affirmed.

Robert A. Welsh, of Provincetown, for appellant.

Chas. Sumner Morrill, of Hyannis, for appellee.

RUGG, C. J.

This is an appeal by the plaintiff from the denial of a motion that the clerk be ordered to amend the record. The motion was heard upon an agreed statement of facts. From this it appears that the case was entered in the Superior Court in September, 1918, and that in April, 1920, after a hearing, there was a finding for the plaintiff for a specified sum. Exception was taken by the defendant to the denial of requests for rulings. Exceptions were duly filed and finally allowed on November 4, 1920, as of October 28, 1920. The case was then pending without action by either party until September 4, 1923, when the attorneys for both parties were notified by the clerk ‘that the case would be dismissed under Rule on Oct. 1, 1923.’ Thereafter nothing was done by the attorney for either party up to and including October 1, 1923, when the case was dismissed and an entry made by the clerk on the docket of this tenor: ‘1923 Oct. 1 Dismissed under rule of Court No. 62 and judgment entered.’ No judge of the Superior Court was present or holding court in Barnstable county at the time of this dismissal. The rule of the Superior Court referred to in this docket entry in force at that time was entitled ‘Dismissal of Old Actions,’ and so far as material was in these words: ‘On the Tuesday after the first Monday of September in each year the clerk in each county, except Suffolk, shall send to counsel in every case which has remained upon the docket without action. Other than placing on the trial list or marking for trial, for two years preceding said date, notice that such case will be dismissed on the first Monday of October following, unless a motion that such case be allowed to remain on the docket alleging cause therefor with affidavit in support thereof shall he filed. If no such motion is filed before said first Monday of October, the case without further notice or hearing shall thereupon be dismissed, and judgment entered forthwith.’

Thereafter until on or about July 7, 1927, no further action was taken in the case. On or about that date the clerk, after consulting with the plaintiff but with no motion or petition pending and without notice to the defendant, changed the docket entry of October 1, 1923, already quoted, by adding the following words ‘for plaintiff for $722.67 and $36.48 costs of suit,’ and affixing also her initials. Later on the same date but without notice to the defendant the clerk issued to the plaintiff a certificate of judgment on said amended record. The plaintiff brought an action on this judgment, the summons therein being the first notice to the defendant of the change in the docket made by the clerk and of the issuance of such certificate of judgment. On July 20, 1927, the clerk again changed the record by striking out all the words of the first amendment to the record, namely, ‘for the plaintiff for $722.67 and $36.48 costs of suit,’ and made the following entry: ‘1927 July 20 A mistake having been made in my final entry of judgment, I have this...