Noyes v. Bankers Indem. Ins. Co.

• Decision Date: 02 January 1941
• Citation: 307 Mass. 567,30 N.E.2d 867
• Parties: NOYES v. BANKERS INDEMNITY INS. Co. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 567

30 N.E.2d 867

NOYES

v.BANKERS INDEMNITY INS. Co. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 2, 1941.

Suit in equity by Mabel R. Noyes against the Bankers Indemnity Insurance Company and another, to reach and apply in satisfaction of a judgment, alleged to have been recovered by the plaintiff, against the estate of one Gordon for injuries sustained by the plaintiff on account of the negligent operation of Gordon's automobile. From a decree dismissing the bill, the plaintiff appeals.

Decree affirmed.Appeal from Superior Court, Middlesex County; F. B. Greenhalge, judge.

Argued before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

W. F. Howard, of Boston, G. M. French, of Nashua, N. H., for plaintiff.

M. Z. Kolodny, of Boston, for defendant.

RONAN, Justice.

This is a bill in equity to reach and apply in satisfaction of a judgment, alleged to have been recovered by the plaintiff against the estate of one Gordon for injuries sustained by her on account of the negligent operation of his automobile, the indemnity furnished Gordon under a motor liability policy issued to him by the corporate defendant. The plaintiff appealed from a final decree dismissing the bill.

The plaintiff was injured on July 9, 1935, while travelling upon a highway in Chelmsford, in this Commonwealth, by reason of a collision with an automobile operated by one Gordon, a resident of Rhode Island. She commenced an action in the District Court of Lowell on July 13, 1935, and the defendant appeared in said action. The plaintiff, on January 31, 1936, desired to discontinue the action then pending in the District Court in order to commence a new action, and, by removing it to the Superior Court, secure a jury trial. Her counsel sent to counsel for the defendant a new writ for acceptance of service, together with an agreement to be executed by the defendant's counsel. This agreement provided for the following entry of judgment in the pending case: ‘The plaintiff is nonsuited without costs and without prejudice.’ The agreement after being signed by counsel for the parties was filed on July 3, 1936, in the District Court. Judgment for the defendant without costs was then entered on the docket. Gordon died on February 22, 1936, but counsel did not learn of his death until October 1, 1936. On October 14, 1936, counsel for the plaintiff filed a suggestion of death and a petition to vacate the judgment for the defendant, which was entered after the filing of the agreement for nonsuit. An order of notice issued and notice was given by registered mail to the attorneys who had appeared for the defendant. No appearance having been entered in behalf of the defendant or his estate, the court on October 27, 1936, ordered the judgment vacated. Thereafter Anne E. Shea was appointed administratrix of the estate of Gordon by the Probate Court of Middlesex County on December 16, 1936-see Gordon v. Shea, 300 Mass. 95, 14 N.E.2d 105-and she became a party defendant. She was subsequently defaulted and judgment was entered for the plaintiff. In the present suit the judge ruled that, as no service was made on the petition to vacate judgment upon either the defendant or his personal representative, the proceedings to vacate the judgment were void and the subsequent judgment was of no effect.

A domestic judgment rendered by a court of common law jurisdiction is valid between the parties as long as it stands, and cannot be attacked collaterally. Joyce v. Thompson, 229 Mass. 106, 118 N.E. 184;Long v. MacDougall, 273 Mass. 386, 173 N.E. 507;Sciaraffa v. Debler, 304 Mass. 240, 23 N.E.2d 111. The reason for the rule has been said to be the existence of a remedy by writ of error in cases in which judgments have been erroneously entered, Smith v. Rice, 11 Mass. 507;Stickney v. Davis, 17 Pick. 169;Hendrick v. Whittemore, 105 Mass. 23;Heard v. Calkins, 234 Mass. 526, 125 N.E. 596, although there are instances where relief has been afforded in equity against the enforcement of a judgment obtained by fraud. Connor v. Morse et al., 303 Mass. 42, 20 N.E.2d 424, and cases cited. Where the court has acquired jurisdiction of the subject matter and the parties, it may render a judgment for or against one of the parties after his death and, although such a judgment is erroneous and liable to be set aside, it is not void or open to collateral attack. Hendrick v. Whittemore, 105 Mass 23;Reid v. Holmes, 127 Mass. 326;New Orleans v. Gaines' Adm'r (New Orleans v. Whitney), 138 U.S. 595, 612, 11 S.Ct. 428, 34 L.Ed. 1102. To avoid the entry of a judgment liable to be reversed upon a writ of error, it has become the practice at common law and under the statute, G.L. (Ter.Ed.) c. 235, § 4, where, after a verdict or a finding has been made decisive of the rights of the parties, one of them dies pending a decision on some question of law, to enter the judgment nunc pro tunc as of a date before the death of the party. Kelley v. Riley, 106 Mass. 339, 8 Am.Rep. 336;Perkins v. Perkins, 225 Mass. 392, 114 N.E. 713;Barnes v. Barnes, 291 Mass. 383, 196 N.E. 917;. The judgment for the defendant was entered in accordance with the statute, G.L.(Ter.Ed.) c. 235, § 2, and Rule 37 of the District Courts (1932), Porter v. Boston Storage Warehouse Co., 238 Mass. 298, 130 N.E. 502;Cohen v. Industrial Bank & Trust Co., 274 Mass. 498, 175 N.E. 78, and remains in force unless it was vacated by the subsequent proceedings taken by the plaintiff. Hanzes v. Flavio, 234 Mass. 320, 125 N.E. 612;Lee v. Fowler, 263 Mass. 440, 161 N.E. 910.

The petition to vacate this judgment, which was filed on October 14, 1936, was a new proceeding, independent of the action in which the judgment was entered. Maker v. Bouthier, 242 Mass. 20, 136 N.E. 255,Beserosky v. Mason, 269 Mass. 325, 168 N.E. 726. This petition stated that the defendant Gordon died on February 22, 1936, and prayed that an order of notice issue to the attorneys who had appeared in his behalf. Such notice was given but no other service was made upon this petition. The death of Gordon prior to the filing of this petition terminated the authority of these attorneys to act further as his agents. Currier v. Lowell, 16 Pick. 170;Gleason v. Dodd, 4 Metc. 333;Fenelon v. Fenelon, 244 Mass. 14, 138 N.E. 334. The petition did not run against Gordon or his personal representative. In fact it did not name any party respondent. It was a mere nulity. Loring v. Folger, 7 Gray 505,Barnes v. Barnes, 291 Mass. 383, 196 N.E. 917. The District Court was without jurisdiction to grant any relief upon...