Soper v. Manning

• Decision Date: 03 March 1893
• Citation: 158 Mass. 381,33 N.E. 516
• Parties: SOPER v. MANNING.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 381

33 N.E. 516

SOPER v. MANNING.

Supreme Judicial Court of Massachusetts, Middlesex.

March 3, 1893

The petitioner testified substantially that he knew that the suit at law of Manning against himself was pending in this court. That he had requested his uncle, Samuel T Soper, to attend to it for him, and supposed that it was being properly looked after, and did not give himself any further concern about the matter, thinking it was all right and that during the time while the action was entered and pending he was out of the commonwealth, absent on a voyage at sea. That when he came back he stayed in Boston for a short time, and then he went to the state of New York. That the litigation in the action at law he supposed was a part of the litigation which arose in the bill in equity, and that in that case his uncle had managed and looked after the interests of all concerned, including the retaining of counsel; said Samuel T. Soper being one of the defendants in the suit at law, and also one of the plaintiffs in said suit in equity. That he did not owe the respondent, Manning anything. That the suit in equity had fully litigated all claim for services on the part of Manning against him. The petitioner also put in a letter from his uncle, received soon after its date by the petitioner. He further testified that he intended to file an answer and defend the action, and that he supposed that everything necessary to be done for the purpose of protecting his rights had been done. That, if he had not so supposed, he should have at once retained counsel and personally investigated the matter. That he was not aware of the default until notice was given him of the execution that issued upon the judgment by the party in whose hands it was placed for collection against him, and was at that time in the state of New York; and that thereupon he took immediate steps to endeavor to get the judgment vacated.

COUNSEL

Nathaniel W. Ladd, for petitioner.

J.F. Manning, in pro. per.

OPINION

HOLMES J.

This is not a writ of review, but the summary proceeding to set aside a judgment in an action "in which the execution has not been satisfied in whole or in part," given by Pub.St. c. 187, §§ 17-19. Skillings v. Society 151 Mass. 321, 322, 23 N.E. 1136. This fact makes a part of the respondent's argument, based on the sections and decisions relating to writs of review, inapplicable.

1. The first exception is to the refusal of a general request to rule that the petition was insufficient in form. No particular defect was pointed out, and such a request is entitled to no more favorable consideration than a demurrer which, it is settled, must point out any defect of technical accuracy of allegation which is relied upon. Windram v. French, 151 Mass. 547, 24 N.E. 914; Train v. Disinfecting Co., 144 Mass. 523, 525, 11 N.E. 929. The only defects suggested are...