Magee v. Flynn
| Court | United States State Supreme Judicial Court of Massachusetts |
| Writing for the Court | RUGG |
| Citation | 245 Mass. 128,139 N.E. 842 |
| Decision Date | 25 May 1923 |
| Parties | MAGEE v. FLYNN. |
245 Mass. 128
139 N.E. 842
MAGEE
v.
FLYNN.
Supreme Judicial Court of Massachusetts, Suffolk.
May 25, 1923.
Appeal from Superior Court, Suffolk County; George A. Sanderson, Judge.
Proceeding by John E. F. Magee against William J. Flynn to vacate a judgment striking a certain action of tort from the docket and to restore it to the docket. From an order overruling a demurrer to the petition, respondent appeals. Affirmed.
The petition alleged [245 Mass. 128]that the petitioner was plaintiff in a certain action of tort in which Flynn was defendant, and that at a sitting of the court in July, 1921, such [245 Mass. 129]action was stricken from the docket, and that the facts set forth in an accompanying affidavit of petitioner's counsel were true. The affidavit alleged that the action was one intended to be tried, and in order for trial on the Unde trial list, at the time the superior court adjourned in June, and had not been actually reached for trial; that affiant filed a motion that the case remain on the docket, and did not know until September 7th that the case had been dismissed; that he received a notice that defendant intended to insist on the dismissal, but through error did not understand that it was to be called up on the day on which it was to be called up on the day on which it was called by the court, but understood that there was to be ‘a special notice at the council for a hearing’ on the matter for some particular day, and that counsel for defendants well knew that he intended to try the action, and was ready and actually prepared to try it, had it been reached. Defendant demurred on the grounds (1) that the petition was [245 Mass. 130]not in accordance with the statute, but stated that it was a petition for a writ of review, and was in the form of a motion to vacate a judgment; (2) that the allegations of the petition were not supported by the petitioner's oath; (3) that the affidavit attached to the petition was that of petitioner's attorney, and not that of the petitioner himself; (4) that the facts set forth in the petition and attached affidavit were not such as entitled petitioner to have the judgment vacated or a writ of review issued.
Charles H. Cronin, of Boston, for appellant.
Lee M. Friedman, Louis B. King, and Friedman, Atherton, King & Turner, all of Boston, for appellee.
RUGG, C. J.
This proceeding is entitled ‘Petition for Writ of Review.’ In substance and effect it is a motion to vacate judgment under G. L. c. 250, § 15. It...
To continue reading
Request your trial
-
Charles I. Hosmer, Inc. v. Commonwealth
...untainted by any substantial error, has been had upon a decisive issue and the petitioner must abide by that result. Magee v. Flynn, 245 Mass. 128, 139 N.E. 842;Rothstein v. Commissioner of Banks, 258 Mass. 196, 155 N.E. 7;Slocum v. Natural Products Co., 292 Mass. 455, 198 N.E. 747;Rathgebe......
-
City of Boston v. Santosuosso
...name or description attached to it.’ E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883, 884. See, also, Magee v. Flynn, 245 Mass. 128, 130, 139 N.E. 842;Hays v. Georgian, Inc., 280 Mass. 10, 15, 181 N.E. 765, 85 A.L.R. 1251. And no stricter rule should be applied here. The ......
-
E.S. Parks Shellac Co. v. Jones
...Corey v. Tuttle, 249 Mass. 135, 137, 144 N. E. 230;Rothstein v. Commissioner of Banks, 258 Mass. 196, 198,155 N. E. 70;Magee v. Flynn, 245 Mass. 128, 130, 139 N. E. 842;Frati v. Jannini, 226 Mass. 430, 432, 115 N. E. 746. See Attorney General v. Henry, 262 Mass. 127, 130, 159 N. E. 539. Sim......
-
Donovan v. Danielson
...Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92, and cases there collected. Shour v. Henin, 240 Mass. 242, 133 N. E. 561;Magee v. Flynn, 245 Mass. 128, 130, 139 N. E. 842;Cheney v. Boston & Maine Railroad, 246 Mass. 502, 506, 141 N. E. 502;Fairbanks v. Beard, 247 Mass. 8, 9, 141 N. E. 59......
-
Charles I. Hosmer, Inc. v. Commonwealth
...untainted by any substantial error, has been had upon a decisive issue and the petitioner must abide by that result. Magee v. Flynn, 245 Mass. 128, 139 N.E. 842;Rothstein v. Commissioner of Banks, 258 Mass. 196, 155 N.E. 7;Slocum v. Natural Products Co., 292 Mass. 455, 198 N.E. 747;Rathgebe......
-
City of Boston v. Santosuosso
...name or description attached to it.’ E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110, 163 N.E. 883, 884. See, also, Magee v. Flynn, 245 Mass. 128, 130, 139 N.E. 842;Hays v. Georgian, Inc., 280 Mass. 10, 15, 181 N.E. 765, 85 A.L.R. 1251. And no stricter rule should be applied here. The ......
-
E.S. Parks Shellac Co. v. Jones
...Corey v. Tuttle, 249 Mass. 135, 137, 144 N. E. 230;Rothstein v. Commissioner of Banks, 258 Mass. 196, 198,155 N. E. 70;Magee v. Flynn, 245 Mass. 128, 130, 139 N. E. 842;Frati v. Jannini, 226 Mass. 430, 432, 115 N. E. 746. See Attorney General v. Henry, 262 Mass. 127, 130, 159 N. E. 539. Sim......
-
Donovan v. Danielson
...Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92, and cases there collected. Shour v. Henin, 240 Mass. 242, 133 N. E. 561;Magee v. Flynn, 245 Mass. 128, 130, 139 N. E. 842;Cheney v. Boston & Maine Railroad, 246 Mass. 502, 506, 141 N. E. 502;Fairbanks v. Beard, 247 Mass. 8, 9, 141 N. E. 59......