Schulz v. Black

Citation336 N.E.2d 853,369 Mass. 958
PartiesRichard A. SCHULZ v. Howard G. BLACK et al.
Decision Date30 October 1975
CourtUnited States State Supreme Judicial Court of Massachusetts

Sumner Bauman, Canton, for defendants.

Ernest L. White, Jr., Mansfield, for plaintiff.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

RESCRIPT.

The defendants defaulted in a suit for specific performance of a land contract, and a 'final decree' was entered ordering them to convey the land upon the receipt of the price. Nearly a year later, in January, 1974, a judge of the Superior Court allowed the plaintiff's motion to amend the decree so that it could be recorded under G.L. c. 183, § 144. In July, 1974, on the ground of the neglect of their attorney to appear, the defendants moved under Mass.R.Civ.P. 60(b)(1), 365 Mass. --- (1974), for an order vacating the amended decree and allowing them to defend the suit. On September 19, 1974, another judge allowed the motion only if the plaintiff failed to tender the price by September 23, 1974, and, on September 13, 1974, the defendants filed a notice of appeal. On September 30, 1974, the defendants moved under Mass.R.Civ.P. 60(b)(4) for an order vacating the amended decree on the ground that the court had no jurisdiction to amend the original final decree. The defendant's second motion was denied and they appealed. The case was transferred to this court on our own motion under G.L. c. 211A, § 10(A). There was no error. A motion under Rule 60 is addressed to the judge's discretion, and no clear abuse of discretion in denying the defendant's first motion is shown. Farmers Co-operative Elevator Ass'n Non-Stock of Big Springs, Neb. v. Strand, 382 F.2d 224, 232 (8th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967). The original final decree might have been recorded if accompanied by the contract, but it would have been irregular in form. It was proper to amend the decree to eliminate the irregularity. See Hyde Park Sav. Bank v. Davankoskas, 298 Mass. 421, 424, 11 N.E.2d 3 (1937); Mass.R.Civ.P. 60(a). Since the time fixed for tender has expired, however, the order on the defendants' first motion is to be vacated in the Superior Court and a new order entered fixing in a new date for tender two weeks after entry of the new order. In all other respects, the orders appealed from are affirmed.

So ordered.

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9 cases
  • Nancy P. v. D'Amato
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • January 13, 1988
    ...rule 60(b) motion, he did not abuse his discretion in declining to grant relief to the mother on these claims. See Schulz v. Black, 369 Mass. 958, 336 N.E.2d 853 (1975). The default entered against the defendant on liability did not relate to such claims, and very likely the defendant would......
  • Berube v. McKesson Wine & Spirits Co.
    • United States
    • Appeals Court of Massachusetts
    • April 19, 1979
    ...merits. See Trustees of Stigmatine Fathers v. Secretary of Admn. & Fin., 369 Mass. 562, 565, 341 N.E.2d 662 (1976); Schulz v. Black, 369 Mass. 958, 336 N.E.2d 853 (1975); Alaimo v. Fredette, 4 Mass.App. 866 B, 358 N.E.2d 453 (1976); Forte v. Muzi Motors, Inc., 5 Mass.App. ---, --- C, 369 N.......
  • Com. v. Dias
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • March 2, 1982
    ...docket the Commonwealth's notice of appeal at the time it was filed). Mass.R.Crim.P. 42, 378 Mass. (919) (1979). See Schulz v. Black, 369 Mass. 958 (336 N.E.2d 853) (1975)." Commonwealth v. Dias, --- Mass.App. at ---, Mass.App.Ct.Adv.Sh. (1981) at 1417, 423 N.E.2d ...
  • Parrell v. Keenan
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 3, 1983
    ...action "will not be reversed on appeal save for abuse." Clarke v. Burkle, 570 F.2d 824, 830 (8th Cir.1978). See Schulz v. Black, 369 Mass. 958, 336 N.E.2d 853 (1975). Furthermore, rule 60 (b)(6) motions may be brought within a reasonable time, and the determination of what constitutes a rea......
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