Karrick v. Wetmore

• Decision Date: 04 January 1912
• Citation: 97 N.E. 92,210 Mass. 578
• Parties: KARRICK v. WETMORE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 578

97 N.E. 92

KARRICK v. WETMORE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1912

Jan. 4 1912.

COUNSEL

Arthur E. Burr, for plaintiff in error.

H. T Richardson, for defendant in error John F. McKay.

OPINION

RUGG C.J.

This is a petition for a writ of error. The material facts are that an action by the intestate of the defendant in error was brought against the plaintiff in error in the superior court for Suffolk county. A verdict was rendered against the plaintiff in error, the defendant in that suit. Subsequently, on July 27, 1898, his exceptions were disallowed as not conformable to the truth. On June 12, 1899, the case was called and dismissed pursuant to a general order of the superior court to that effect applying to all cases in which no action had been taken within the year next preceding. Action had been taken in the case as above stated, but notwithstanding that, judgment of dismissal was entered on the first Monday of July, 1899, under the general rule of that court requiring judgment to be so entered in all cases ripe for judgment. More than fifteen months later, on October 18, 1900, on motion, by order of the superior court, 'said dismissal is stricken off, the same having been improvidently entered, and action having been taken within the year but not discovered.' Thereafter judgment was entered on the verdict against the defendant there, the present plaintiff in error, he being then a nonresident. The present writ of error is brought to reverse this judgment.

I. The judgment of dismissal of July, 1899, entered under the general rule after a calling of the list, was a final judgment in the cause. After the expiration of one year thereafter the superior court had no power to vacate that judgment and bring it forward for other action. These points were decided in Pierce v. Lamper, 141 Mass. 20, 6 N.E. 223; Radclyffe v. Barton, 154 Mass. 157, 28 N.E. 148; Davis v. National Life Ins. Co., 187 Mass. 468, 73 N.E. 658. See Wetmore v. Karrick, 205 U.S. 141, 150, 27 S.Ct. 434, 51 L.Ed. 745, and Patch v. Wabash R. R., 207 U.S. 277, 281, 28 S.Ct. 80, 52 L.Ed. 204; R. L. c. 193, § 15. This being so, it is not necessary to consider whether there was evidence of notice to the present plaintiff in error of the motion to strike out the dismissal, for it is not claimed that he assented to such action.

II. The defendant seeks to avoid the force of these decisions on two grounds: (1) because the action dismissing the case at the calling of the list in June, 1899, and the entry of the judgment in July, 1899, were mistakes, and (2) because the case could not under the law have been dismissed and judgment of dismissal entered.

1. The power of a court to correct clerical errors in its records arising from misprision of the clerk, improvidence of jurors failure of commissioners to express their decision or otherwise is ample. Capen v. Stoughton, 16 Gray, 364; Lucy v. Dowling, 114 Mass. 92; Fitchburg v. Fitchburg Railroad, 180 Mass. 535, 62 N.E. 989; Whitney v. Commonwealth, 190 Mass. 531, 540, 77 N.E. 516. But no clerical error appears here. There is no doubt that the docket memorandum of dismissal, minuted as the case was called, was made intentionally, although it might not have been made if the whole record respecting the case had been in the mind of the court. But that which was done was intended to be done, and the entry of judgment of dismissal in July, 1899, was the exact entry intended to be made. There was no clerical error. There was no failure to make the written record correspond with the...