Hunt v. Simester
| Decision Date | 06 April 1916 |
| Citation | 112 N.E. 76,223 Mass. 489 |
| Parties | HUNT et al. v. SIMESTER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; William Cushing Wait, Judge.
Action by William Hunt and others against Mary E. Simester, executrix. A judgment for plaintiffs having been vacated, the case is reported to the Supreme Judicial Court. Exceptions overruled, appeal dismissed, and order affirmed.
Hurlburt, Jones & Hall and F. P. Cabot, all of Boston, for petitioners.
Moulton, Loring & Bigelow, of Boston, for respondent.
The writ in this action, without attachment of property or bond to dissolve an attachment, was entered in the superior court of Suffolk county August 2, 1915.
The defendant had accepted service of the writ. On August 11, 1915, the day before the time of an appearance would expire, the defendant's attorney went to the office of the clerk of the superior court, for the purpose of filing an appearance if the writ had been entered. He testified that he had examined the indexes and was unable to find the case; that the ‘defendants' index’ was missing; that he went to one of the clerks, a male clerk at the counter, and told him that he was unable to find the case; that the clerk said, ‘You go right inside and they will help you;’ that he went inside, presented the summons to a clerk, who came forward to meet him; that he said to her, that she went out of sight at first, and came back and said, that she went inside, to one of the desks, where this clerk was working on the index, and came back with the information that the case had not been entered; that he then looked among the nonentries to see if the writ was there, and not finding it, went back to his office; and August 14, 1915, he went on a vacation.
Other testimony established that there is in the clerk's office, a general index of pending cases and an index of current cases, and that an examination of the last named index would have shown that the entry of the writ had been duly made.
It is argued that inquiry should have been made of the entry clerk, at the sheriff's office or of the plaintiffs' counsel, if the case was not found among the non-entries.
August 23, 1915, the plaintiffs recovered judgment against the defendants in default for non-appearance for the sum of $15,575.30 damages, and $22.54 costs.
September 9, 1915, execution issued on said judgment.
September 23, 1915, petitioners, defendants, filed this petition under R. L. c. 193, §§ 15, 16, 17.
The court ordered notice to issue returnable September 30, 1915, and that upon the filing of a bond for $5,000, supersedeas should issue. September 25, 1915, a bond for $5,000 was filed and a writ of supersedeas issued.
September 30, 1915, before the introduction of any evidence upon the petition to vacate the judgment, the court's attention was directed to the manifest irregularity and error in the order, whereby a writ of supersedeas had issued upon the filing of a bond with the penal sum less than the amount of the judgment sought to be vacated. The petitioners proffered...
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