Ryan v. Hickey

• Decision Date: 23 November 1921
• Citation: 132 N.E. 718,240 Mass. 46
• Parties: RYAN v. HICKEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 46

132 N.E. 718

RYAN

v.HICKEY.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 23, 1921.

Appeal from Superior Court, Suffolk County; Sisk, Judge.

Suit by Annie M. Ryan against Dennis W. Hickey to vacate a judgment. From an order sustaining a demurrer and dismissing the petition, the petitioner appeals. Affirmed.

The petition alleged that the petitioner was defendant in an action on a note; that after a verdict against her a motion was made to set aside the verdict and for a new trial because the verdict was against the evidence and the weight of the evidence and against the law; that petitioner made known to the presiding justice at the hearing of such motion her intention to except to any adverse ruling, but that the justice subsequently denied the motion in the absence of counsel; that neither she nor her counsel had knowledge thereof until some time later; and that she believed from the circumstances that no notice was given her by the clerk. The demurrer was on the ground that the matters stated in the petition were not sufficient in law for the petitioner to maintain the action.

Ralph Wardlaw Gloag, of Boston, for appellant.

Robert W. Light, of Boston, for appellee.

RUGG, C. J.

This is a petition under G. L. c. 250, §§ 14 to 20, to vacate a judgment entered in the superior court. The salient facts alleged are that an action of contract on a promissory note brought against the present petitioner as defendant was tried to a jury and resulted in a verdict for the plaintiff; that the petitioner, being defendant in that action, seasonably filed a motion for a new trial on the ground amongst others that the verdict was against the law in that there was no evidence before the jury of any demand having been made and refused and notice of nonpayment given so as to make the petitioner, the defendant in that action, liable, and that there was no evidence of any waiver thereof, and that notice was given to the judge, who heard the motion, of intention to take exception to an adverse ruling and decision; that the motion was denied in the absence of counsel and no notice thereof given to counsel or client and no knowledge thereof came to either counsel or client in time to save exceptions. A demurrer to the petition was sustained and an order entered dismissing the petition. The petitioner's appeal brings the case here.

A petition to vacate a judgment under the statute ordinarily is addressed to the discretion of the court and the refusal to grant it raises no question of law. Hunt v. Simester, 223 Mass. 489, 112 N. E. 76;Marsch v. Southern New England Railroad Corp., 235 Mass. 304, 126 N. E. 519;Porter v. Travelers' Insurance Co., 236 Mass. 524, 128 N. E. 880.

This record presents the different question whether the petition discloses ground, which, as matter of law, would justify the exercise of a sound judicial discretion in favor of the petitioner. That question must be answered in the negative. This petition discloses ground which as matter of law would not warrant the vacation of the judgment.

The point upon which the petitioner relies is that her motion for a new trial ought to have been granted because at the trial before the jury there was as matter of law no evidence to support a verdict against her. That was a question of law which might and hence ought to have been raised at the jury trial. That was the time for saving exception of that ground, and no right of the petitioner was...