Hurnanen v. Gardner Automobile Co.

• Decision Date: 28 November 1916
• Citation: 225 Mass. 189
• Parties: FRANK HURNANEN, administrator, v. GARDNER AUTOMOBILE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 189

FRANK HURNANEN, administrator, v. GARDNER AUTOMOBILE COMPANY.

Supreme Judicial Court of Massachusetts, Worcester.

November 28, 1916

October 2 1916.

Present: RUGG, C.

J., LORING, BRALEY CROSBY, & PIERCE, JJ.

Practice, Civil Removal of default. Words, "Good cause."

By the provisions of R.L.c. 173, Section 54, that courts "may, for good cause shown, extend the time for entering an appearance, and may, in their discretion and upon terms, take off a default at any time before judgment," power is conferred upon the courts to remove a default whenever in the exercise of judicial discretion a default ought to be removed.

Where in an action of tort after the defendant has been defaulted and the plaintiff's damages have been assessed by a jury but before judgment has been entered, the defendant moves that the default be removed and that he be allowed to file an appearance and answer and to be heard upon the merits, and it appears that his failure to appear and answer was due to a misunderstanding of the significance of the filing by him of an attachment bond and to a mistake in the office of his attorneys due to the summons not having been placed in their hands by him, and affidavits filed by him disclose an adequate defence to the action, "good cause" in the terms of the statute is shown, warranting the court, in the exercise of judicial discretion, in removing the default setting aside the verdict, permitting the filing of an appearance and answer, and ordering a trial of the action upon its merits.

In such a case, the power of the court to make the orders setting aside the verdict, permitting the filing of an appearance and answer, and ordering the trial upon the merits, is incident to the power given by the statute to remove the default.

Such a motion to remove a default and to set aside a verdict assessing damages is in no proper sense a motion for a new trial.

TORT for conscious suffering and death of the plaintiff's intestate, alleged to have been caused by negligence of the defendant's servants or agents. Writ dated December 10, 1915.

In the Superior Court, for lack of an appearance and answer, the defendant was defaulted and the plaintiff's damages were assessed by a jury in the sum of $4,000. Before entry of judgment, upon a motion of the defendant supported by affidavits described in the opinion, it was ordered by King, J., that the default be removed and the assessment of damages set aside upon the defendant paying within ten days the plaintiff's witness fees and $15 as costs, and the defendant was given leave to file an appearance and answer within five days thereafter, whereupon the case should be placed upon the trial list for the sitting of the court then current.

Being of the opinion that under the circumstances the propriety of the order should be determined by this court before further proceedings in the case, the judge reported the case to this court, upon the agreement that if the order was unwarranted it was to be set aside and judgment was to be entered on the verdict, and that otherwise the order was to be affirmed and the case was to be remanded to the Superior Court for further proceedings.

The case was submitted on briefs. J. G. Annala, for the plaintiff.

J. P. Carney & H.

W. Blake, for the defendant.

RUGG, C.J. The only question presented by this report is whether the Superior Court judge had power to remove a default and permit the case to be tried on its merits. The action is in tort for injuries alleged to have been sustained through the negligence of the defendant in operating an automobile. Service of the writ was made duly on the defendant. The defendant did not appear in response to the summons and later was defaulted. A jury was impanelled and by it the damages sustained by the plaintiff were...