Smith v. Brown

• Decision Date: 16 February 1933
• Parties: CHARLES E. SMITH v. HYMAN J. BROWN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 81

CHARLES E. SMITH v. HYMAN J. BROWN.

Supreme Judicial Court of Massachusetts, Suffolk.

February 16, 1933

November 17, 1932.

Present: RUGG, C.

J., CROSBY, PIERCE FIELD, & LUMMUS, JJ.

Practice, Civil Dismissal for failure to prosecute, Vacation of judgment.

Where, at the hearing of a petition to vacate a judgment for the respondent entered in an action against him by the petitioner pursuant to Common

Law Rule 62 of the Superior Court (1923), the judge found that the respondent had filed a large number of dilatory pleas in the action that he had shown "a set purpose . . . to avoid a trial of the case on its merits" and that he had waived certain exceptions saved by him on the day before the judgment was entered, and allowed the petition "as a matter of discretion," it was held, that

(1) The respondent was not harmed by inconsequential misstatements of fact or informalities in the petition, and they did not prevent consideration of the petition on its merits;

(2) The petition to vacate judgment was a proper proceeding to take following a judgment of dismissal under the rule;

(3) The petition was not to be denied merely by reason of the defendant's waiver of his exceptions in the action: if he were harmed thereby, it was in consequence of his voluntary act not induced by the petitioner;

(4) It could not be assumed that the petition was allowed without an order that the petitioner file a bond as required by G. L. (Ter. Ed.) c.

250, Section 17, or that such bond was not filed; (5) Even if the bond had not been ordered or filed, it could be filed and approved nunc pro tunc;

(6) No abuse of discretion appeared in the allowance of the petition.

PETITION, filed in the Superior Court on July 7, 1931, for vacation of a judgment for the respondent entered in an action against him by the petitioner.

Material facts are stated in the opinion. A motion to dismiss the petition was denied, and a demurrer thereto overruled, by order of Sisk J., and a plea in abatement was overruled by order of Beaudreau, J. The respondent alleged exceptions.

The case was submitted on briefs. N. Barnett, for the respondent.

A. K. Cohen, M.

E. Bernkopf, & L.

M. Ring, for the petitioner.

PIERCE, J. This is a petition under G. L. (Ter. Ed.) c. 250, Section 15, to vacate a judgment of dismissal, entered June 6, 1931, in the Superior Court in the action of Charles E. Smith vs. Hyman J Brown, number 172935, under Common Law Rule 62 of the Superior Court (1923), now Rule 85 of the Superior Court (1932), 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, Section 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 vs. 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 number 172935 was introduced in evidence and is annexed thereto.

The docket entries in this case disclose 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 number 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 judge 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 fourteen 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...