Smith v. Brown

• Decision Date: 16 February 1933
• Citation: 282 Mass. 81,184 N.E. 383
• Parties: SMITH v. BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 81

184 N.E. 383

SMITH

v.BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 16, 1933.

Exceptions from Superior Court, Suffolk County; Beaudreau, Judge.

Petition to vacate a judgment of dismissal by Charles E. Smith against Hyman J. Brown. The petition was allowed, and defendant brings exceptions.

Exceptions overruled.

A. K. Cohen, M. E. Bernkopf, and L. M. Ring, all of Boston, for petitioner.

N. Barnett, of Boston, for respondent.

PIERCE, Justice.

This is a petition under G. L. (Ter. Ed.) c. 250, § 15, to vacate a judgment of dismissal, entered June 6, 1931, in the Superior Court in the action of Charles E. Smith v. Hyman J. Brown, No. 172935, under Common Law Rule 62 (1923) (now 85 [1932]) of the Superior Court, for failure to prosecute said action under said rule.

The defendant in the original action and in this petition received due notice of the petition under G. L. (Ter. Ed.) c. 250, § 16. He filed a demurrer to the petition, a motion to dismiss and a plea in abatement, ‘without waiving any of said pleas.’ A hearing was had on the demurrer and motion to dismiss and on October 13, 1931, the motion to dismiss was denied and the demurrer overruled. With the order denying the motion and overruling the demurrer, the following facts and rulings were filed in the clerk's office: ‘The writ and declaration in case 172935, Charles E. Smith v. Hyman J. Brown, was duly entered in this Court on August 4, 1925. On August 24 following, the defendant files a plea in abatement, demurrer and answer. In 1928 the case was marked ‘Inactive’ under Rule 62. Commencing on October 17, 1929 and continuing to June 5, 1931, the defendant filed a large number of dilatory pleadings. On April 7, 1931, the plaintiff's motion to place the case upon the list of those for trial without jury was allowed and the case ordered on the present jury waived list. On May 27, 1931, the defendant filed a motion to vacate the order of Court of April 7, 1931, on this motion. On June 5, 1931, the defendant filed a waiver of his substitute bill of exceptions. On June 6, 1931 the case was dismissed and judgment entered under Rule 62. On July 7, 1931, the petitioner filed his petition to vacate said judgment, order of notice issued thereon returnable on the first Monday of August following. On August 11, the respondent filed a motion to dismiss the petition and a demurrer to the petition. A certified copy of the docket entries in case No. 172935, was introduced in evidence and is annexed thereto. The docket entries in this case discloses a set purpose on the part of the defendant to avoid a trial of the case on its merits. In view of the circumstances as disclosed by the docket entries in case No. 172935 and as a matter of discretion, the petition to vacate judgment in said action is allowed. The respondent's motion to dismiss is denied; his demurrer is overruled. The respondent filed certain requests for rulings on the demurrer and motion to dismiss annexed hereto. The requests are refused. James H. Sisk, Justice of the Superior Court.'

The plea in abatement was later marked for hearing and was overruled by a justice of the Superior Court, who made the findings of fact and rulings which follow: ‘After hearing the parties on the respondent's plea in abatement in the above entitled action, and on the evidence as submitted I find that the facts are in accord with the findings of facts as found by Mr. Justice James H. Sisk in his memorandum on the plaintiff's petition to vacate judgment filed October 13, 1931. The respondent filed 14 requests for rulings which are all refused and his plea in abatement is hereby overruled.’

The defendant contends that the petition lacks essential elements in that it does not allege that the conduct of the plaintiff or his counsel was not the cause of the entry of judgment in said case, but that it arose or was caused by inadvertence, mistake or accident; that the docket entries show clearly that the defendant could not be placed in statu quo if the judgment is vacated in that the defendant had waived his exceptions immediately before the entry of judgment in said case which are incapable of being revived, and by reason thereof the defendant cannot be placed in the same position he was before the judgment in said case was entered; that counsel for plaintiff was negligent for failing to procure an order of court to extend the time of dismissal of said action as provided in said rule 52 before judgment of dismissal was entered in said action, and that he failed to do so knowingly and wilfully or through carelessness, negligence or laxity of his legal duties to look after the case, and to ascertain what steps were to be taken in the disposition of said case in accordance with the principle held in Rosenbush v. Westchester Fire...