Mackay v. Brock
| Decision Date | 25 May 1923 |
| Citation | 139 N.E. 517,245 Mass. 131 |
| Parties | MACKAY et al. v. BROCK et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Supreme Judicial Court, Middlesex County.
Petition by Etta Gertrude Mackay and others against Halliburton D. Brock and others for leave to file a bill in the nature of a bill of review. A demurrer to the petition was sustained generally and the petition dismissed, and plaintiffs appeal. Interlocutory decree sustaining demurrer, and final decree dismissing petition, affirmed.F. H. Nash, of Boston, for appellants.
Samuel D. Elmore, of Boston, for appellee Leavitt.
Geo. L. Mayberry and Lowell A. Mayberry, both of Boston, for appellees Brock and others.
Francis J. Carney, of Boston, for executrix.
This is a petition for leave to file a bill in the nature of a bill of review. A demurrer was filed assigning as grounds (1) want of jurisdiction in the court to entertain the petition; and (2) no substantive facts pleaded sufficient in law to warrant allowance of the petition. An interlocutory decree sustaining the demurrer generally, and a final decree dismissing the petition were entered. The appeal of the plaintiffs brings the case here.
The facts alleged must be accepted as true for the purposes of this decision. They are in substance that the plaintiffs brought a suit against the defendants in 1906 to redeem certain real estate from a mortgage. After a demurrer and a plea had been overruled, the case was referred to a master, who resigned by reason of appointment to the superior court. In 1914 the case was referred to another master. It is not alleged that thereafter any proceedings took place in the case until in April, 1921, pursuant to a general order for the dismissal of certain cases which had remained on the docket without action for one year preceding January 1, 1921, when a final decree was entered dismissing the case without prejudice. There is an averment that the ‘final decree was entered without notice to the plaintiffs and by accident or mistake,’ and that the plaintiffs' counsel never received notice of the general order for dismissal. No facts set out tended to show that there was accident or mistake in the entry of the final decree. Two affidavits accompany the petition, both by members of the firm of attorneys representing the plaintiffs. One is to the effect that the affiant was the only member of the firm having knowledge of the plaintiffs' case, that no list of causes for dismissal under the general order was brought to his attention, and that, if he had had notice, he would have made a motion to allow the case to remain on the docket. The other affidavit is to the effect that the affiant had general supervision, at the time in question, of the lists of cases of his firm pending in court, that no copy of the general order of dismissal is in the files of the office, and he has no recollection of ever having seen it, and is practically sure that no such order with list of cases came to that office. In essence the statements are that the attorneys for the plaintiffs did not receive actual notice of the pendency of the case for dismissal or of the entry of the final decree. The prayer is that the decree of dismissal be reviewed and vacated and the case restored to the equity docket.
A petition for a writ of review or petition in the nature of a petition for a writ of review is an original proceeding and not a new...
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Olsson v. Waite
...upon the record; or the discovery of new facts, which could not have been used when the decree was passed." In Mackay v. Brock, 245 Mass. 131, 133-134, 139 N.E. 517, 518 (1923), we said, "A writ of review commonly is granted only for matter of law apparent on the face of the record, for new......
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Hyde Park Sav. Bank v. Davankoskas
...of failure to defend because of mistake may be remedied thereby. Crawford v. Nies, 224 Mass. 474, 490, 113 N.E. 408;Mackay v. Brock, 245 Mass. 131, 134, 139 N.E. 517. But there are statements to the contrary. Handy v. Miner, 265 Mass. 226, 227, 163 N.E. 881;Frechette v. Thibodeau (Mass.) 20......
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Hyde Park Sav. Bank v. Davankoskas
... ... review, and that cases of failure to defend because of ... mistake may be remedied thereby. Crawford v. Nies, ... 224 Mass. 474 , 490. Mackay v. Brock, 245 Mass. 131, ... 134. But there are statements to the contrary. Handy v ... Miner, 265 Mass. 226 , 227. Frechette v ... Thibodeau, ... ...
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...light after the decree, and (3) new matter arising after the entry of the decree. Clapp v. Thaxter, 7 Gray, 384, 386;Mackay v. Brock, 245 Mass. 131, 133, 134, 139 N. E. 517;Manning v. Woodlawn Cemetery Corp., 249 Mass. 281, 288, 144 N. E. 99. [6] The ground of relief alleged in the case at ......