Sullivan v. Jordan

• Decision Date: 10 September 1941
• Citation: 36 N.E.2d 387,310 Mass. 12
• Parties: SULLIVAN v. JORDAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

310 Mass. 12

36 N.E.2d 387

SULLIVAN

v.JORDAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 10, 1941.

Report from Superior Court, Suffolk County; Greenhalge, Judge.

Action of tort by Clifford B. Sullivan, administrator, against Francis J. Jordan and others for the death of plaintiff's intestate as result of an automobile accident. After a judgment was entered for plaintiff, plaintiff brought a bill to reach and apply in satisfaction of the judgment the obligation of defendant Employers Liability Assurance Corporation, Limited, which was insurer of defendant Helen Crosby, Inc., under a motor vehicle liability policy as defined in G.L.(Ter.Ed.) c. 90, § 34A. The trial judge entered an interlocutory decree sustaining a plea of defendant insurer that the cause of suit stated in the bill did not accrue within one year before commencement of suit. On report from the superior court.

Interlocutory decree affirmed.

Argued before FIELD, C. J., and DONAHUE, DOLAN, and RONAN, JJ.

J. P. White, of Boston, for plaintiff.

K. C. Parker, of Boston, for defendants.

RONAN, Justice.

On May 25, 1934, an automobile owned by the defendant Helen Crosby, Inc., and registered in its name, was operated with its consent by the defendant Francis J. Jordan, when the automobile struck the plaintiff's intestate, causing injuries from which she died. The defendant Employers Liability Assurance Corporation, Ltd., was the insurer of Helen Crosby, Inc., under a motor vehicle liability policy as defined in G.L.(Ter.Ed.) c. 90, § 34A, which provided insurance to the amount of $10,000 against liability for a single injury or death. After a trial in the Superior Court of an action of tort brought by the plaintiff against Jordan for causing the death of the plaintiff's intestate, a finding was entered for the plaintiff on April 21, 1938, with damages assessed at $11,586.64, which was in excess of the ad damnum of $10,000. Nothing was done until December 5, 1938, when the plaintiff filed a waiver of so much of the damages as was in excess of the ad damnum. On December 12, 1938, apparently without action by any judge, the clerk entered judgment for the plaintiff for $10,000 damages and $20 costs, upon which execution issued on December 13, 1938.

On September 29, 1939, the plaintiff brought the present bill to reach and apply in satisfaction of the judgment the obligation of the defendant insurer, under G.L.(Ter.Ed.) c. 214, § 3(10), and c. 175, § 113. The defendant insurer filed a plea that the cause of suit stated in the bill did not accrue within one year before the commencement of the suit. By G.L.(Ter.Ed.) c. 260, § 4, in its latest form in St.1937, c. 385, § 9, a suit in equity of the class to which the present suit belongs ‘shall be commenced only within one year next after the cause of action accrues.’ The judge ‘sustained’ the plea (Dudley v. Sheehan Construction Co., 305 Mass. 144, 145, 25 N.E.2d 230) upon the only evidence introduced, which was a copy of the docket in the action of tort for causing death, in which the facts already stated appeared, and then reported the case.

The right to begin a suit of the class to which the present suit belongs accrues upon the expiration of thirty days after judgment in the action of tort. G.L.(Ter.Ed.) c. 214, § 3(10). Compare c. 175, § 113. If the judgment was in law rendered on December 12, 1938, the commencement of the present suit on September 29, 1939, was well within the year ‘next after the cause of action accrues,’ allowed by G.L.(Ter.Ed.) c. 260, § 4 (St.1937, c. 385, § 9). But the defendant insurer contends that the action was ‘ripe for judgment’ as soon after the finding made on April 21, 1938, as the twenty days allowed for claiming an appeal or filing a bill of exceptions, G.L.(Ter.Ed.) c. 231, §§ 96, 113, expired, and that judgment followed as matter of course on the following Monday, at ten o'clock in the forenoon, under G.L. (Ter.Ed.) c. 235, § 1, and Rule 79 of the Superior Court (1932). Here there was not only a statute providing for the entry of judgments by the clerk in civil actions and proceedings ripe for judgment, but there was, what was lacking in Gardner v. Butler, 193 Mass. 96, 78 N.E. 885, a rule of the court directing the clerk, unless the party entitled to judgment otherwise requests in writing or the court otherwise orders, to enter judgment at ten o'clock in the forenoon on Monday of each week in civil actions and proceedings ripe for judgment. Rule 79 of the Superior Court (1932). Under such a rule judgment is rendered in the view of the law when it ought to be entered, even though the clerk fails to make any entry upon the docket. Gardner v. Dudley, 12 Gray 430;Pierce v. Lamper, 141 Mass. 20, 6 N.E. 223;Davis v. National Life Ins. Co., 187 Mass. 468, 73 N.E. 658;Wallace v. Boston Elevated Railway, 194 Mass. 328, 80 N.E. 461;Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108, 98 N.E. 696;Boston Bar Association v. Casey, 227 Mass. 46, 51, 116 N.E. 541;Warner v. Pittsfield, 231 Mass. 138, 141, 120 N.E. 379;Nugent v. Boston Consolidated Gas Co., 238 Mass. 221, 238, 130 N.E. 488;Porter v. Boston Storage Warehouse Co., 238 Mass. 298, 301, 130 N.E. 502;Cohen v. Industrial Bank & Trust Co., 274 Mass. 498, 504, 175 N.E. 78. If the contention of the defendant is sound, judgment was in law rendered on May 16, 1938, and the present suit begun on September 29, 1939, was barred by limitations. The whole case turns on the question whether the action of tort was ‘ripe for judgment,’ and consequently went to judgment on May 16, 1938.

The only ground advanced by the plaintiff in support of his contention that the action was not ‘ripe for judgment’ on May 16, 1938, is that the finding for the plaintiff exceeded the amount of the ad damnum of his writ. There is no suggestion that the assessment of damages was due to accident or mistake or that a judgment following that finding was not the judgment that the court intended to render. Prenguber v. Agostini, 289 Mass. 222, 193 N.E. 743;Amory v. Kelley, 309 Mass. 162, 34 N.E.2d 507. Such a judgment was erroneous in that it did not conform to the amount claimed in the writ, but the defect resulted from an error committed by the court while acting within its jurisdiction, Kirby v. Donovan, 228 Mass. 86, 90, 117 N.E. 241;Paige v. Sinclair, 237 Mass. 482, 484, 130 N.E. 177;Kevorkian v. Superior Court, 295 Mass. 355, 357, 3 N.E.2d 742, rather than from a finding that the court was without power to make. Jochumsen v. Suffolk Savings Bank, 3 Allen 87;Carroll v. Berger, 255 Mass. 132, 150 N.E. 870;Rogan v. Liberty Mutual Ins. Co., 305 Mass. 186, 25 N.E.2d 188. Accordingly, it has been held that a judgment in excess of the ad damnum is not void but voidable. Grosvenor v. Danforth, 16 Mass. 74.Hemmenway v. Hickes, 4 Pick. 497;Safford v. Weare, 142 Mass. 231, 7 N.E. 730. The defect could have easily been corrected by an amendment to the writ, increasing the ad damnum. G.L.(Ter.Ed.) c. 231, § 51. Luddington v. Goodnow, 168 Mass. 223, 46 N.E. 627;Laxton v. Hay, 211 Mass. 463, 98 N.E. 29, Ann.Cas.1913B, 709;Kinnear v. General Mills, Inc., 308 Mass. 344, 32 N.E.2d 263. No such step was taken. Kelly v. Foley, 284 Mass. 503, 508, 188 N.E. 349. A judgment which at the most is only voidable stands until it is modified, vacated or set aside in direct proceedings...