Maki v. New York, New Haven and Hartford Railroad Co.

• Decision Date: 27 January 1936
• Citation: 293 Mass. 223
• Parties: FANNIE MAKI v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 223

FANNIE MAKI v. NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY.

Supreme Judicial Court of Massachusetts, Plymouth.

January 27, 1936

October 9, 1935.

Present: RUGG, C.

J., PIERCE, FIELD LUMMUS, & QUA, JJ.

Practice, Civil Vacation of judgment.

A judgment dismissing an action under Rule 85 of the Superior Court (1932), entered through mistake and without fault of the plaintiff, may be vacated on petition under G.L. (Ter. Ed.) c. 250, Section 15, if there is evidence that the petitioner has a meritorious cause of action.

PETITION, filed in the Superior Court on July 17, 1934. The petition was heard and allowed by Collins, J. The respondent alleged exceptions.

P. F. Perkins, for the respondent. J. Minkin, for the petitioner.

RUGG, C.J. This is a petition under G.L. (Ter. Ed.) c. 250, Section 15, to vacate a judgment entered against the petitioner under Rule 85 of the Superior Court (1932) for failure to prosecute her action against the respondent. After hearing, the trial judge found that the judgment was caused to be entered through the mistake or neglect of former counsel for the petitioner and not by reason of lack of diligence or fault of the petitioner. He further found that there was a controversy involving conflicting evidence and, being of opinion that justice required that the petitioner be given an opportunity to have her cause of action fully tried on the merits, allowed the petition.

The respondent states that the single issue presented is whether there is any evidence that the defendant damaged the plaintiff by causing water to overflow her land and cranberry crops through the negligent construction or maintenance of its roadbed and culverts.

The granting of a petition of this nature rests largely but not exclusively in the sound judicial discretion of the trial judge. Alpert v. Mercury Publishing Co. 272 Mass. 43 , 45. The petitioner is bound to show that she had a case of sufficient merit to engage the attention of the court. Lovell v Lovell, 276 Mass. 10 . Manzi v. Carlson, 278 Mass. 267 , 273. Mellet v. Swan, 269 Mass. 173 177.

There was evidence tending to show that land of the petitioner was overflowed to her damage, that when she first bought her land there was no such overflowing, that at the time of an overflow her husband explored an embankment and culvert of the respondent about a quarter of a mile lower on a small stream and found that the culvert...