Silverstein v. Daniel Russell Boiler Works, Inc.

• Decision Date: 12 September 1929
• Parties: SILVERSTEIN v. DANIEL RUSSELL BOILER WORKS, Inc.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 424

167 N.E. 676

SILVERSTEIN

v.DANIEL RUSSELL BOILER WORKS, Inc.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept, 12, 1929.

Exceptions from Superior Court, Suffolk County; Alonzo R. Weed, Judge.

Petition for review to reopen an action brought by Morris L. Silverstein against the Daniel Russell Boiler Works, Incorporated, in which judgment was entered for defendant after case was dismissed by the Supreme Judicial Court (254 Mass. 137, 149 N. E. 705). Petition was denied, and plaintiff brings exceptions. Exceptions overruled.

Joseph Cavanagh, of Boston, for petitioner.

Asa S. Allen and Chester C. Steadman, both of Boston, for respondent.

RUGG, C. J.

This is a petition for review to reopen an action brought by the plaintiff against the defendant on a promissory note. There was a trial of that action in the Superior Court and verdict was rendered in favor of the defendant. The plaintiff alleged exceptions and the case was reported to this court. The report was not seasonably entered and for that reason the case was dismissed. 254 Mass. 137, 149 N. E. 705. In accordance with the rescript, judgment has been entered. It was conceded that failure to enter the report seasonably was due to the negligence of counsel. It is stated in the exceptions: ‘It further appeared and was admitted that there was substantial error in the ruling of the presiding justice in the Superior Court on the trial of the original action.’ The finding of the trial judge on review was this: ‘From an examination of said report, I am satisfied that the petitioner had reserved therein a substantial question of law affecting the merits of the case, and I find that the petitioner by reason of the negligence of his counsel has been deprived of an opportunity of having the correctness of the presiding judge's instruction passed upon by the Supreme Judicial Court and any error therein made corrected, and that he has no remedy in the premises except by a review of the judgment entered in said case as prayed for in his petition. I further find that his only cause of complaint grows out of the negligence of his counsel. Upon the facts found, I rule as matter of law and not as matter of discretion that the petition should be denied, and I order that entry be made-‘Petition denied.”

Frequently it has been said that the granting or denying of a petition for a writ of review rests largely in sound judicial discretion. Scituate Water Co. v. Simmons, 167 Mass. 313, 314, 45 N. E. 750;Welch v. Chase, 213 Mass. 519, 100 N. E. 634;Winthrop v. Athol, 216 Mass. 79, 102 N. E. 900;Rollins v. Bay View Auto Parts Co., 239 Mass. 414, 423, 132 N. E. 177. That statement implies that such discretion is not absolute. It was said by Chief Justice Shaw in Thayer v. Goddard, 19 Pick. 60, at page 66, with reference to the fault of an attorney: ‘Great care should be taken not to encourage negligence and carelessness in cases of so much importance to the rights of others, especially in agents who receive a compensation for their services.’ In Sylvester v. Hubley, 157 Mass. 306, at page 308, 32 N. E. 166, occurs this statement: ‘This discretion should be exercised in such a way as to promote an orderly and proper administration of justice, and not to encourage carelessness, ignorance, and laxity of practice in the conduct of cases in courts.’

The findings of fact in the case at bar make it plain that the sole cause of possible harm to the petitioner arose from the negligence of his attorney. No extenuating circumstances are set forth in the record. There was a full trial before a jury. The petitioner has not been deprived of all hearing. It was said in Sylvester v. Hubley, 157 Mass. 306, at page 308, 32 N. E. 166, by Knowlton, J.: ‘It is true, as a general rule, that a review should not be...