Russell v. Foley

• Citation: 278 Mass. 145
• Parties: CLARENCE A. RUSSELL v. MICHAEL F. FOLEY.
• Decision Date: 25 January 1932
• Court: United States State Supreme Judicial Court of Massachusetts

278 Mass. 145

CLARENCE A. RUSSELL v. MICHAEL F. FOLEY.

Supreme Judicial Court of Massachusetts, Suffolk.

January 25, 1932

December 15, 1931.

Present: RUGG, C.

J., WAIT SANDERSON, & FIELD, JJ.

Judgment, Petition to vacate. Practice, Civil, Entry of verdict under leave reserved, Exceptions. A judgment entered in an action pursuant to Common Law Rule 53 of the

Superior Court (1923) stands, with respect to a petition to vacate it under G.L.c. 250, Section 15, on the same footing as all other judgments described in said Section 15. The granting of a petition to vacate a judgment under G.L.c. 250, Section

15, is addressed largely although not exclusively to the sound discretion of the court in which the judgment was entered.

A petition for vacation of a judgment entered for the defendant in an action at law after the plaintiff had failed to have allowed, as required by

Common Law Rule 53 of the Superior Court (1923), exceptions to the entry of a verdict for the defendant in accordance with leave reserved under

G.L.c. 231, Section 120, should not be granted unless the judge who hears the petition is satisfied that the plaintiff had a meritorious and good cause of action in the original action.

An error by the judge hearing such petition in refusing to rule that "the petitioner must show that he had a meritorious . cause of action" was not harmless merely because the judge had entered the verdict for the defendant under leave reserved and may have believed that a genuine question deserving consideration and determination by this court was involved in his ruling: he may not have entertained that view.

PETITION, filed in the Superior Court on April 24, 1931, to vacate a judgment entered in favor of the respondent in an action against him by the petitioner.

The petition was heard by Greenhalge, J., upon testimony by the parties' attorneys. Findings by the judge are stated in the opinion. He refused to make the following rulings requested by the respondent:

"1. The petition on its face fails to set forth grounds sufficient in law to vacate a judgment.

"2. The discretion of the presiding judge should be exercised so as not to encourage carelessness or laxity.

"3. In order to secure the vacation of the judgment, the petitioner must show that he had a meritorious and good cause of action in the original action."

"5. Upon all the facts adduced in evidence, the petition must be dismissed."

The petition was allowed, and the respondent alleged exceptions. Lee M Friedman, (F.L. Kozol with him,) for the respondent.

J.R. Kewer, (R.F. Barrett with him,) for the petitioner.

RUGG, C.J. This is a petition filed as an original proceeding on April 24, 1931 to vacate a judgment entered in the Superior Court on April 21, 1931. G.L.c. 250, Section 15. Maker v. Bouthier, 242 Mass. 20 , 22, 23. It relates to the judgment entered in a case tried to a jury, in which after verdict for the plaintiff, under leave reserved, the trial judge entered a verdict for the defendant subject to the plaintiff's exceptions. A bill of exceptions in that case was seasonably filed. Final extension of time for allowance of those exceptions expired on April 17, 1931. The exceptions had not then been allowed. The trial judge, after a hearing, allowed the present petition, at the same time denying certain requests for rulings and filing a statement of findings and order of this tenor: "Upon all the evidence including matters which occurred before me and of which I have personal knowledge, I find that the attorney for the plaintiff, after a hearing upon the bill of exceptions, at which the exceptions were substantially settled by the court, failed to apply for a further extension of the time for the allowance of the substituted bill, due to an error as to the precise date when the previous extension expired. Unless these facts as matter of law must be so construed, I do not find that plaintiff's counsel was so lax or careless in the matter as to conclude me from the exercise of discretion in the premises, and, accordingly, if I have authority to do so, I direct that an order be entered allowing the within motion and vacating judgment in the within case."

These findings of fact must stand because (1) they rest in part upon matters within the personal knowledge of the judge and not set forth in the record, and (2) there is evidence in the record to support the findings made. Moss v. Old Colony Trust Co. 246 Mass. 139, 143.

The judgment was entered pursuant to Common Law Rule 53 of the Superior Court (1923) then in force. (See now Rule 74 of the Superior Court [1932]). That rule was in these words: "Bills of Exceptions. Hearings. Allowance. In all causes in which bills of exceptions have been filed and remained without action thereon for three months, the clerk shall forthwith notify the parties interested and the justice who tried the case that unless within thirty days thereafter, or within such further time as the justice may for cause allow, the bill of exceptions is presented to the presiding justice for allowance and is by him allowed, it will be dismissed and judgment will be entered as though no exceptions had been filed. If within such time the bill of exceptions is not allowed the exceptions shall be dismissed as of course and judgment be entered as though no bill of exceptions had been filed." It was a valid rule. Plainly it was the duty of the present petitioner, as the excepting party in that case to comply with that rule or bear the consequences of his failure to do so. Bath Iron Works, Ltd. v. Savage, 262 Mass. 123 . Herbert v. G.E. Lothrop Theatres Co. 273 Mass. 462 . The force and effect of the penalty of the rule are that, when exceptions have been dismissed pursuant to its provisions, judgment shall be entered as though no bill of exceptions had been filed. It does not attempt to go further. Such judgment when entered stands with respect to a petition to vacate on the same footing as all other judgments described in G.L.c. 250, Section 15, stand. It has no superior force or immunity as compared with other judgments. The...