Sweeney v. Morey & Co.

Decision Date05 July 1932
Citation181 N.E. 782,279 Mass. 495
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesSWEENEY v. MOREY & CO., Ine.


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

Proceeding on the petition of Richard F. Sweeney to vacate a judgment entered for the plaintiff in an action by the Morey & Co., Inc., against petitioner. The Superior Court, on appeal from the Boston Municipal Court, denied the petition, and petitioner brings exceptions.

Exceptions sustained.

Respondent to the petition to vacate the judgment requested the court to rule and find as follows:

‘1. That the petition to vacate judgment filed by Richard F. Sweeney does not set out a reason in law or fact upon which the Court may properly act.

‘2. That in this cause judgment should not be vacated where no fraud, accident or mistake has been shown as to the trial of the cause itself.

‘3. That the record discloses no ground which as a matter of law or fact would justify the exercise of sound judicial discretion in favor of Sweeney as petitioner. * * *

‘5. That the judgment in this case may not be vacated where it is shown that the sole purpose is that of circumventing rule 37 of the Municipal Court of the City of Boston, and Chapter 231, section 108, of the General Laws. * * *

‘7. That there is no duty upon the part of the Court or the clerk either by rule or statute to notify the attorney of findings.

‘8. That it is the duty of the parties to look after their cases and to ascertain what steps are taken in their disposition.’J. J. Higgins, of Boston, for plaintiff.

G. D. Shorey, of Boston, for defendant.


This is a petition under G. L. c. 250, § 15, to vacate a judgment entered on Friday, August 1, 1930, for the plaintiff in an action pending in the Municipal Court of the City of Boston, wherein the present respondent was plaintiff and the present petitioner was defendant. On July 29, 1930, notice of a finding by the court in favor of the plaintiff was left at the office of Mr. Higgins the attorney for the defendant, who was then absent in Maine. Receipt of the notice was acknowledged by signature, John J. Higgins, by M. A. M.’ Actual notice of the finding was received indirectly by the absent attorney in the evening of Saturday, August 2, 1930. He immediately returned to his office in Boston and on Monday, August 4, 1930, found the clerk's notice on his desk. On that day the present petition was filed. On the day following, the defendant in the original action filed a request for a report and, on the second day following, filed a draft report. Both were subsequently returned to him. The present petition was allowed in the Municipal Court. The respondent appealed. At the hearing in the Superior Court requests for rulings presented by the petitioner were denied. The trial judge made findings of the tenor following: ‘I do not find that counsel for Richard F. Sweeney was negligent in his conduct of this case, his absence from his office is well justified, but rule 37 of the Municipal Court of the City of Boston is peremptory in its nature, and failure to comply with its terms cannot be relieved. I therefore grant defendant's requests for rulings Nos. 1, 2, 3, 4, 5, 6, 7, 8, and the petition to vacate is denied.’ The exceptions of the petitioner bring the case here.

The petition sets forth in substance the facts already narrated, and alleges that it was the intention of the attorneyin the original action to request a report if the finding was against the defendant, but that owing to the absence of the attorney and want of actual knowledge of the adverse finding, the judgment was entered; that no execution issued and execution has not been satisfied in whole or in part, and that the petitioner is advised that there is a real question of law involved worthy of presentation to the Appellate Division. No attack has been made upon these allegations. It has not been argued that, so far as material, they are not to be accepted as true.

A petition to vacate judgment is addressed largely, although not exclusively, to the sound discretion of the trial judge. The trial judge in the case at bar does not appear to have exercised his discretion but to have denied the petition as matter of law. We think that that is the true construction of his findings and rulings already quoted. His findings, so far as they go, are favorable to the petitioner. The attorney for the petitioner is exonerated from blame and his absence is found to have been justified. The reference in the findings and rulings to Rule 37 of the Municipal Court of the City of Boston must be deemed to be a clerical error or a mistake, for that rule relates to procedure after the establishment by the trial judge of the report to the Appellate Division. The original case here under consideration never reached that stage. We assume that reference was intended to Rule 36 of the Rules of the Municipal Court of the City of Boston (1928). [The substance of that rule was Rule 37 of the Rules of that court of 1922]. That rule, so far as here material, is in these words: ‘The party requesting a report shall file a draft thereof within five days after notice of the finding in the cause, provided that the cause be then ripe for judgment, except for the pendency of requests for rulings or request for a report; otherwise within five days after the cause becomes so ripe for judgment. * * * If no draft report is filed as above required, the cause shall proceed as though no claim of report had been made.’ The relevant statute then operative (see now St. 1931, c. 426, § 116) was G. L. c. 231, § 108. It there was provided that a party aggrieved by any ruling of law by a trial judge of the Municipal Court of the City of Boston might have that ruling reported for decision by the Appellate Division and that ‘request for such a report shall be filed with the clerk within two days after notice of the ruling.’

The question is whether upon the facts already narrated the ruling of law made by the trial judge, to the effect in substance that the time had gone by when the petitioner could get any report of his case, was right. It would be vain to exercise discretion to vacate a judgment if, when such vacation had taken place, the petitioner could as matter of law take no benefit thereby and when the only course open to the trial court under the governing statute and rule would be to enter the same judgment again. The answer to the question thus presented depends upon the interpretation of the words in the statute requiring request for report ‘within two days after notice of the ruling,’ and of the words in Rule 36 requiring the filing of a draft report ‘within five days after notice of the finding.’

The precise point to be decided in this connection is the meaning of the words ‘within two days after notice’ in the statute and ‘within five days after notice’ in the rule. Specifically, do they mean within the stated time after notice sent, or after notice delivered at office, home, or address; or do they mean after notice actually received by the person entitled to it?

It may be presumed that the ‘notice’ referred to in both statute and rule is the notice required by G. L. c. 218. § 46, to the effect that in a district court (which includes the Municipal Court of the City of Boston, G. L. c. 4, § 7, Seventh, as most recently amended by St. 1931, c. 394, § 208) ‘when a decision is rendered in an action, except in open court, the clerk of the court shall forthwith give notice thereof to the parties or to their attorneys.’ Neither the statute nor any rule of the Municipal Court of the City of Boston prescribes how such notices shall be given by the clerk.

Several decisions support the proposition that, in the absence of other governing provisions, a notice designed to affect legal rights must be personal or the contents thereof must be actually conveyed to the person to whom notice must be given. Wiggin v. Elder, etc., of First Freewill Baptist Church, 8 Metc. 301, 312;City of Lawrence v. Webster, 167 Mass. 513, 46 N. E. 123;Stebbins v. Merritt, 10 Cush. 27, 32;Street Lumber Co. v. Sullivan, 201 Mass. 484, 486, 87 N. E. 905,16 Ann. Cas. 354;Webber Lumber & Supply Co. v. Erickson, 216 Mass. 81, 102 N. E. 940. There is a considerable body of authority in other jurisdictions to the effect that, where notice is required by statute or by established judicial procedure, the service must be personal unless a different method of service is authorized. Haldane v. United States, 16 C. C. A. 447, 450,69 F. 819;Haj v. American Bottle Co., 261 Ill. 362, 364, 365, 103 N. E. 1000, Ann. Cas. 1915A, 220;Wilson v. Inhabitants of City of Trenton, 53 N. J. Law, (24 Vroom) 645,23 A. 278,16 L. R. A. 200;Beakes v. Da Cunha, 126 N. Y. 293, 297,27 N. E. 251; Burdett v. Lewis, 7 C. B. (N. S.) 791, 794.

It is to be observed that the notice here involved is not required to be given by a party as a condition to the taking of further steps in procedure, such as notice of filing exceptions, Chertok v. Dix, 222 Mass. 226, 110 N. E. 272, or of filing motions, Gloucester Mutual Fishing Ins. Co. v. Hall, 210 Mass. 332, 96 N. E. 679, Ann. Cas. 1912D, 348, or of the filing of petitions to establish exceptions, Thorndike, Petitioner, 270 Mass. 334, 170 N. E. 67, or the giving of notice of personal injuries, Schneider v. Boston Elevated R. Co., 259 Mass. 564, 566, 156 N. E. 734, or the giving of notices according to stipulations in contracts, McCord v. Masonic Casualty Co., 201 Mass. 473, 88 N. E. 6. There must be strict compliance with requirements of that nature. They relate to matters where the essential facts to be embodied in the notice are known to the person required to give the notice, and the notice is designed to draw the attention of his adversary to those facts. That principle is not applicable in the case at bar. The principle of cases like Bath Iron Works, Ltd., v. Savage, 262 Mass. 123, 159 N. E. 445, and ...

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