Scituate Water Co. v. Simmons

• Decision Date: 08 January 1897
• Citation: 167 Mass. 313,45 N.E. 750
• Parties: SCITUATE WATER CO. v. SIMMONS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 313

45 N.E. 750

SCITUATE WATER CO. v. SIMMONS.

Supreme Judicial Court of Massachusetts, Plymouth.

January 8, 1897

COUNSEL

H.J. Jaquith and

W.R. Bigelow, for petitioner.

Edward E. Avery, for respondent.

OPINION

KNOWLTON J.

This is a petition for a writ of review of an action in which judgment was rendered against the petitioner on its default. At the hearing the petitioner asked the court to rule as follows: "Upon all the evidence in the case, there is no evidence, as a matter of law, to warrant a finding for the respondent, and the court is bound to find for the petitioner, and to grant the writ of review prayed for." The petitioner's exception to the refusal of the judge so to rule presents the only question in the case. A petition for a writ of review is ordinarily addressed to the discretion of the court, or, to state the principle more accurately, in accordance with the reason of the rule, it is ordinarily, in such cases, a question of fact whether, under the rules of law and the established principles of practice, having regard to the rights and interests of all parties, justice and equity require a review of the action. There was evidence at the hearing which would have well warranted the issuing of a writ of review, but there were possible views of the testimony which might make it the duty of the judge to refuse to grant a writ. He might have thought that the default resulted from the negligence of the petitioner's attorney, and that it was best to leave the petitioner to look to him for its remedy. See Amherst College v. Allen, 165 Mass. 178 42 N.E. 570; Sylvester v. Hubley, 157 Mass. 306, 32 N.E. 166. He might have thought that there was negligence on the part of the officers of the corporation which resulted in the default, and that justice did not require a review of the action. It appeared that, of the five directors of the corporation, only two acted in bringing and prosecuting the petition, and that two opposed it; the other took no action for or against it. The respondent, who was the treasurer and one of the directors of the corporation, testified that no stock had ever been issued by the corporation; that no meeting of the directors or owners had been held since November, 1894, which was 10 months before the bringing of the petition; that the other original corporators of the company had resigned; and that he owned a very large interest in the company. There was...