Wrinn v. Sellers
| Decision Date | 23 May 1925 |
| Docket Number | Nos. 4973-4976.,s. 4973-4976. |
| Parties | WRINN v. SELLERS. SAME v. LEADER PUB. CO. (three cases). |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Essex County; Thayer, Judge.
Separate petitions by James J. Wrinn against V. T. Sellers and the Leader Publishing Company to vacate judgments. Petitions were allowed, and defendants appeal. Affirmed.
M. A. Flanagan and J. J. Fox, both of Lawrence, for appellants.
John P. S. Mahoney, of Lawrence, for appellee.
[1] These are petitions filed on September 30, 1924, to vacate judgments entered on October 1, 1923. G. L. c. 250, §§ 14, 20. The petitions rightly were entered as separate proceedings. Maker v. Bouthier, 242 Mass. 20, 136 N. E. 255. They set out grounds sufficient in law for vacation a judgment. Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92;Shour v. Henin, 240 Mass. 240, 133 N. E. 561. Order of notice was issued in proper form. On the return day attorneys entered a ‘special appearance’ for the defendant in each case but filed no pleading whatever. Bond was filed and petition allowed on November 25, 1925. Each defendant appealed on December, 15, 1924.
[2][3] The defendants have argued that no sufficient service was made upon them. That question is not raised on this record. The special appearance alone was not enough. It made no mention of the ground for special appearance. Motion should have been filed to dismiss, or a plea to the jurisdiction, on account of insufficient service. Oliver Ditson Co. v. Testa, 216 Mass. 123, 103 N. E. 381;Reynolds v. Missouri, Kansas & Texes Railway, 224 Mass. 379, 380, 113 N. E. 413. See Cheshire National Bank v. Jaynes, 224 Mass. 14, 112 N. E. 500. The entry of a special appearance without more was under the circumstances the equivalent of a general appearance. Rollins v. Bay View Auto Parts Co., 239 Mass. 414, 423, 132 N. E. 177. While in general pleadings are not necessary in a proceeding like the present (Hastings v. Parker, 168 Mass. 445, 47 N. E. 194), when the defendant relies upon some special matter not going to the merits of the case, he must raise it by special pleading in order to have a standing as of right on such special matter.
No error is disclosed on this record of which advantage can be taken by appeal. Samuel v. Page-Storms Drop Forge Co., 243 Mass. 133, 137 N. E. 169;G. L. c. 231, § 96.
In each case the allowance of the petition is affirmed.
So ordered.
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Beauregard v. Dailey
... ... Rollins v. Bay View Auto Parts Co., 239 Mass. 414, ... 423, 132 N.E. 177. Compare Walling v. Beers, 120 ... Mass. 548, 550; Wrinn v. Sellers, 252 Mass. 423, ... 425, 147 N.E. 899. The finding of the trial judge that the ... defendants in open court had given him reason to ... ...
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Lynch v. Springfield Safe Deposit & Trust Co.
...Decree allowing distribution was dated May 15, 1936. In general, pleadings are not necessary in proceedings like the present. Wrinn v. Sellers, 252 Mass. 423 , 425. Thomajanian v. Odabshian, 272 Mass. 19, Hastings v. Parker, 168 Mass. 445 . It follows that it was not necessary to plead the ......
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Richard v. Industrial Trust Co., 9726
...authority for the view that an entry of special appearance without more is equivalent to a general appearance and cites Wrinn v. Sellers, 252 Mass. 423, 147 N.E. 899, upon which the superior court relied in rejecting plaintiff's contention that the plea of res judicata was not a bar to her ......
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Mellet v. Swan
...to vacate a judgment is a separate and independent proceeding. Maker v. Bouthier, 242 Mass. 20, 24, 136 N. E. 255;Wrinn v. Sellers, 252 Mass. 423, 425, 147 N. E. 899. Like a trial on the merits it affects the rights of the parties in important respects. The automobile which struck and kille......