Radclyffe v. Barton
| Decision Date | 26 June 1891 |
| Citation | 28 N.E. 148,154 Mass. 157 |
| Parties | RADCLYFFE v. BARTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Error to superior court, Suffolk county; LINCOLN F. BRIGHAM, Judge.
HEADNOTES
Judgment 137 228 ----228IV By Default
228IV(B) Opening or Setting Aside Default
228k137 Authority of Court.
Where judgment by default has been properly entered, the court cannot, on mere motion, vacate the judgment at a subsequent term, allow an amendment increasing the ad damnum, and enter a new judgment for a larger sum.
Chas. H. Sprague, for plaintiff in error.
Hayes Lougee, for defendant in error.
The cause was finally disposed of by the entry of judgment for $300 on the default. There was no fraud nor error nor mistake in the entry of that judgment, as was the case in Edson v. Edson, 108 Mass. 590; Stickney v. Davis, 17 Pick. 169, and Capen v. Stoughton, 16 Gray, 364. The term of court had closed. Several more terms had also passed. After all this, the court, on a mere motion, assumed to vacate the judgment, to bring forward the action, to allow a amendment increasing the ad damnum, and to enter judgment against the plaintiff in error for a larger sum. We need not consider whether it is to be presumed that notice of the motion was given to the plaintiff in error or not. In the assignment of errors he sets forth that no notice was given to him, but by his agreement he waives this. It would be more satisfactory to have had this fact proved, if it existed; but, whether notice was given or not, it was not in the power of the court at that time to vacate the judgment on a mere motion. Mason v. Pearson, 118 Mass. 61; Blanchard v. Ferdinand, 132 Mass. 389; Wood v. Payea, 138 Mass. 61; Pierce v. Lamper, 141 Mass. 20, 6 N.E. 223; Barnes v. Smith, 104 Mass. 363; Mortland v. Little, 137 Mass. 339. See, also, Dudley v. Keith, 153 Mass. ---, 26 N.E. 442. We need not consider whether it might have been done on a formal petition, under Pub.St. c. 187, § 17, (Pierce v. Lamper, ubi supra,) or on a writ of review, (Pub.St c. 187, §§ 22, 25, 30, 35.) The judgment for $300 was properly entered, and the plaintiff in error has no ground of complaint on that score. Jarvis v. Blanchard, 6 Mass. 4; Storer v. White, 7 Mass. 448; Fairfield v. Burt, 11 Pick. 244. That judgment, therefore, will stand, and the judgment subsequently entered must be reversed.
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