Shour v. Henin

• Decision Date: 16 January 1922
• Citation: 133 N.E. 561,240 Mass. 240
• Parties: SHOUR v. HENIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

240 Mass. 240

133 N.E. 561

SHOUR

v.HENIN.

Supreme Judicial Court of Massachusetts, Hampden.

Jan. 16, 1922.

Report from Superior Court, Hampden County; Henry A. King, Judge.

Action by Frank Shour against Charles C. Henin. Reported from the superior court on defendant's motion to set aside the verdict. Motion denied.

The motion to set aside the verdict was made on the ground that on October 2, 1916, the action was dismissed, and judgment entered accordingly, that the judgment had never been lawfully vacated or set aside, and that the verdict could not legally be rendered and was void. The petition to vacate the judgment of October 2, 1916, alleged that the case was brought by a writ dated May 5, 1913, and was in contract and based on a written agreement more particularly described by the declaration, and by virtue of such action plaintiff sought to recover the sum of $65; that in March, 1914, the case was referred to an auditor, following which time hearings were held, evidence taken, and arguments made, but that no report had been returned; that the case was dismissed for no action within two years; that the order of dismissal was erroneously made owing to the fact that the auditor's hearings had been conducted within a period of two years.

Ely & Ely, William C. Giles, and William A. McDonough, all of Springfield, for plaintiff.

W. G. Brownson, of Springfield, for defendant.

RUGG, C. J.

This is an action of contract. The writ is dated May 5, 1913. In March, 1914, the case was referred to an auditor. Hearings were held before him, some of them within two years prior to October 2, 1916. On that date the case was marked on the superior court docket: ‘Dismissed, no action.’ On May 11, 1917, petition was filed to vacate the judgment on the ground that the order of dismissal was erroneously entered, because hearings had been held before the auditor within two years. There was a hearing upon this petition on its merits, where it appeared that counsel for the defendant was present and told the presiding judge that it was true that hearings had been held by the auditor within two years previous to October 2, 1916. The petition to vacate judgment was allowed. No bond was filed. In January, 1920, the rule to the auditor was discharged. In April, 1920, a motion by the plaintiff for trial by jury was allowed. A trial by jury was had and verdict rendered for the plaintiff on March 11, 1921. Three days later the defendant filed a motion to set the verdict aside on the ground that the judgment of October 2, 1916, had never been vacated, because no bond had been filed, and hence that all subsequent proceedings were void. Up to the filing of this motion on March 14, 1921, the record fails to disclose any objection on the part of the defendant to the proceedings.

The dismissal of the action on October 2, 1916, was a final judgment in the case. It could be vacated or set aside only on some proceeding authorized by law. Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92.

The mode provided by law for setting aside a judgment is found in R. L. c. 193, §§ 14-20 (G. L. c. 250, §§ 14-20).

[3] The petition in the case at bar was seasonably filed. It was sufficient in substance to warrant the favorable action of the court, which is largely discretionary. Marsch v. Southern New England Railroad, 235 Mass. 304, 305, 126 N. E. 519. No bond was filed as required by section 17. Both parties proceeded to further steps in the litigation as if the bond had been filed. If objection had seasonably been taken to failure to file the bond, or to the entry of the order of vacation of judgment before the filing of the bond, it would have been necessary to reverse that action of the court and remand the case to the superior court for further proceedings. Davis v. National Life Insurance Co., 187 Mass. 468, 73 N. E. 658. It then would have been within the jurisdiction of that court to approve a proper bond and to vacate the judgment. The hearing would still be open for that end. There is no limit of time set in section 14 for the filing of the bond provided the petition to vacate the judgment is seasonably filed. Hunt v. Simester, 223 Mass. 489, 112 N. E. 76. Doubtless where the circumstances warrant, as seemingly they do in the case at bar, it would be within the power of the court to approve the bond nunc pro tunc...