Manzi v. Carlson

• Decision Date: 03 March 1932
• Parties: MANZI v. CARLSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

278 Mass. 267

180 N.E. 134

MANZI

v.CARLSON.

Supreme Judicial Court of Massachusetts, Worcester.

March 3, 1932.

Exceptions from Superior Court, Worcester County; Winfred H. Whiting, Judge.

Petition by A. S. Manzi to vacate a default judgment obtained against him by Gertrude Carlson. Petition allowed, and respondent brings exceptions.

Exceptions overruled.

C. W. Proctor, of Worcester, for respondent.

RUGG, C. J.

This is a petition to vacate a judgment entered in the superior court and to remove default in an action wherein the present respondent was plaintiff and the present petitioner was defendant.

The original action was in tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff therein while traveling in an automobile upon a public way because of the negligence of the defendant therein while he was operating another automobile. The trial judge in the case at bar found as ‘a fact that the injury to Gertrude Carlson which was the basis of recovery in the original action was not caused by any negligent act of A. S. Manzi, the petitioner herein.’ There was ample evidence to support that finding. The contrary has not been argued. The effect of that finding is to show that the petitioner had a meritorious defence to the action in which the judgment here sought to be vacated was entered. Thus one essential element of proof in order to enable the petitioner to prevail is established. Mellet v. Swan, 269 Mass. 173, 168 N. E. 732.

The petitioner must also show that his own conduct with reference to the action has not been so reprehensible from a legal point of view as to bar relief. Alpert v. Mercury Publishing Co., 272 Mass. 43, 172 N. E. 223. As bearing upon this aspect of the case, the respondent presented requests for rulings. Only those argued need be considered. One request was to the effect that, if the petitioner failed to show that he used reasonable diligence in defending the original action against him, then the petition cannot be maintained. Another request was in substance that, if the original action was not defended because of the failure of the petitioner as defendant in that action to deliver to his attorneys the summons served on him, then the petitioner has failed to show that he exercised reasonable diligence in defending the original action and cannot prevail in this petition. Those requests, although separately numbered, in substance are the same, one being a subsidiary of the other. They were denied on the ground, as stated by the trial judge, that ‘they relate to rulings of law and are in my opinion contrary to the opinion of Knowlton, J. in Sylvester v. Hubley, 157 Mass. 306, at page 308, 32 N. E. 166. I am governed by them to the extent indicated in the opinion above stated. In the case at bar, in view of my findings of fact that the injury to the original plaintiff was not caused by any negligent act of the defendant in the original action, I do not rule that the negligence of the original defendant in not appearing and defending the original action or in not giving the summons to his attorney is conclusive against him in this proceeding.’

Sylvester v. Hubley was a petition for review and not for vacation of judgment. The two proceedings differ somewhat in nature and in procedure. The principles which govern the exercise of judicial discretion in determining whether to grant relief, so far as here involved, and the extent of review by this court, are the same in both. Skillings v. Massachusetts Benefit Association, 151 Mass. 321, 23 N. E. 1136;Soper v. Manning, 158 Mass. 381, 384, 33 N. E. 516;City of Boston v. Robbins, 116 Mass. 313;Keene v. White, 136 Mass. 23;Hunt v. Simester, 223 Mass. 489, 492, 112 N. E. 76;Marsch v. Southern New England Railroad Corporation, 235 Mass. 304, 305, 126 N. E. 519. Therefore, the trial judge rightly regarded himself as bound by the principleof Sylvester v. Hubley so far as pertinent to the facts of the case at bar.

The relevant part of the decision relied upon by the trial judge is in 157 Mass. at pages 308, 309, 32 N. E. 166, in these words: ‘It is true, as a general rule, that a review should not be granted when the petitioner's only cause of complaint grows out of the negligence or misconduct of his attorney, but he should be left to seek his remedy against him who is responsible for the wrong. Any other rule would tend to fraud and to laxity of practice, greatly to the detriment and delay of honest suitors. On the other hand, we are not prepared to lay down an absolute rule of law that in no case can a review be granted where the error complained of was due to the negligence or misconduct of the petitioner's attorney. A case might be supposed in which such a rule would work great injustice. The statute gives the court power to prescribe such terms in granting the review as will reasonably protect the interests of the respondent. It was evidently the purpose of the legislature to give the court much latitude in determining what justice requires in each particular case.’ That statement means that negligence or misconduct of an attorney is not necessarily a bar to a petition to vacate judgment. The petitioner here apparently had no attorney to represent him in the original action against him. The question presented in the case at bar is whether the conduct of the party defendant such as is disclosed on this record as matter of law bars such a petition.

The petitioner testified that he had no notice of the original action against him. That evidence was received without objection and, although contradicted by the officer who made the service, the judge may have believed the petitioner. The original writ and return do not appear in the record, although the petition alleged that the return of the officer showed personal service. The petitioner further testified that the first knowledge he had of the action was when he received from the clerk of the court a postal card to the effect that he had been defaulted (see G. L. c. 231, § 58, as amended by St. 1931, c. 81); that thereupon he called the clerk on the telephone and was told the name of the attorney in charge of the case and advised to call him; that he then talked over the telephone with the attorney for the plaintiff and told him he had sued the wrong party, ‘that the car belonged to the Worcester Red Top Luxor Cab Company and he [the attorney for the plaintiff] told me over the telephone why didn't I tell him before,’ that ‘he would take it up, and would sue the Luxor Cab Company,’ and the petitioner ‘took for granted he would reopen the case and sue the Luxor Company.’ That appears to be all the material testimony on this point from the petitioner or by which he was bound. That testimony was admitted without objection and was entitled to its probative force. For aught that appears, the judge may have believed this and given no credence to the other testimony. An intimation, posibly having a contrary aspect although somewhat equivocal, by the judge during the trial was made before the close of the evidence of the petitioner. It is not to be treated as a finding of fact or a ruling of law on which the decision rested. In any event, the petitioner is entitled to have this court decide the case on the aspect of the evidence most favorable to him, especially in view of the decision in his favor. This amounts to no more knowledge on the...