274 Mass. 498 | Mass. | 1931
This is an action of contract to recover a real estate commission. The defendant was defaulted and the default removed. The defendant was defaulted again on November 7, 1929, when the case came on for trial. On the following day the defendant filed a motion to remove the default, setting forth the reasons which might have been found adequate for removal of that default. No further action was taken until January 18, 1930, when the plaintiff filed a motion that the motion of the defendant filed on November 8, 1929, to remove the default of the previous day be dismissed and that judgment be entered as of November 18, 1929. Except for the filing of the motion by the defendant on November 8, 1929, the case was otherwise ripe for judgment on November 18, 1929. On January 23, 1930, the matters came on for hearing and the motion of the defendant of November 8 to remove the default was granted and the case ordered to be tried on the February special jury list. By implication, if not expressly, the plaintiff’s motion for judgment was denied. The plaintiff excepted.
This bill of exceptions, although relating to an interlocutory matter and not reported by the trial judge, is now rightly before us, because the case has been tried to a jury, has resulted in a verdict for the defendant, no exceptions appear to have been taken at that trial, and the case seems to be otherwise ripe for final disposition. Brooks v. Shaw, 197 Mass. 376, 378-379. Weil v. Boston Elevated Railway, 216 Mass. 545, 546-547. Anti v. Boston Elevated Railway, 247 Mass. 1, 3-4.
The sole question for decision is whether the mere filing of these motions was sufficient to prevent the case from going to judgment, or whether the case automatically went to judgment.
Care has been taken that defendants who have been defaulted receive due notice thereof from the clerk of the
The contention of the plaintiff, narrowly stated, is that such motion must actually be brought to the attention of the court for affirmative action of some' sort before the time when under general rule the case would be ripe for judgment; otherwise, the power of the court to deal with the motion has vanished.
The entry of judgments is governed by statutes and rules. G. L. c. 235, § 1: “ Judgments in civil actions and proceedings ripe for judgment in the superior court shall, unless the court by general or special order otherwise orders, be entered by the clerk at ten o’clock in the fore
It is strongly argued that the case was “ ripe for judgment ” notwithstanding the mere filing of the motion to take off the default upon the binding authority of certain decisions. The general principle is stated in Lynn Gas & Electric Co. v. Creditors National Clearing House, Inc. 237 Mass. 505, 507, in these words: “It is not easy to give a universally applicable definition of the term ‘ripe for judgment ’ as used in the statute. It has been said in general to be ‘ when, under the last entry, the case seems to have been brought to a final determination, and everything seems to have been done that ought to be done before the entry of a final adjudication upon the rights of the parties.’ American Wood Working Machinery Co. v. Furbush, 193 Mass. 455, 457. In the application of this rule numerous cases have been held ripe for judgment although some matter remained on the surface of the record undisposed of.”
The case of Dunbar v. Baker, 104 Mass. 211, is not relevant to the facts here involved. That decision, as is made clear by Holland v. Martin, 123 Mass. 278, 279, was an interpretation of the effect of U. S. Rev. Sts. § 5106,
A motion to remove a default is of a different nature. It does not relate to incidentals. It goes to the vitals of the whole case. It is recognized by statute, by rule of
The action of the trial judge is supported by several decisions. In Gilchrist v. Cowley, 181 Mass. 290, 291, the facts were that, on November 26, 1901, the defendants filed a motion for continuance on the ground that, after action brought, they had been trusteed by a creditor of the plaintiff; that, on November 30, 1901, a finding was made for the plaintiff; that, under the rule effective at that time, judgment was to be entered on the first Monday of January, 1902, in cases then ripe for judgment; that, on January 31, 1902, motion was filed that the clerk be directed to enter judgment as of the first Monday of January, 1902; that, on February 12, that motion was denied and motion for continuance filed on the same date by the above-mentioned creditor was allowed. It was held that “ whether the defendant’s motion was well founded, or whether the only effective one was that filed by the creditor . . . after the first Monday in January, the time
There is nothing in Berry Clothing Co. v. Shopnick, 249 Mass. 459, 463, 464, Silverstein v. Daniel Russell Boiler Works, Inc. 268 Mass. 424, or Lynn Gas & Electric Co. v. Creditors National Clearing House, Inc. 237 Mass. 505, 507, or in numerous other decisions cited by the plaintiff, at variance with this conclusion.
It is a recognized principle that cases ripe for judgment actually go to judgment although the clerk fails to make any note to that effect. Wallace v. Boston Elevated Railway, 194 Mass. 328. Nugent v. Boston Consolidated Gas Co. 238 Mass. 221. Porter v. Boston Storage Warehouse Co. 238 Mass. 298, 301, and cases cited. Alpert v. Mercury Publishing Co. 272 Mass. 39, 41. That principle does not aid the plaintiff because the case at bar was not ripe for .judgment owing to the filing of the motion to remove the default, as already pointed out.
The conclusion here reached does not offer to- an obstinate or contumacious litigant a new weapon for delay. The rule is constantly followed to the effect that dilatory and obstructive tactics, accompanied by the filing of papers in court, will not be permitted to interfere with the proper progress of a case to judgment. Boston Bar Association v. Casey, 227 Mass. 46, 48, 49. Thorndike, petitioner, 257 Mass. 409, 411, and cases cited. Pepper v. Old Colony
Exceptions overruled.