347 Mass. 313 | Mass. | 1964
In this action of tort, in which the plaintiff Lillian Holmes (hereinafter called the plaintiff) had a verdict, several procedural questions have arisen.
The First Case.
The questions for decision arose in these circumstances. On March 30, 1960, a conditional nonsuit under Rule 36 of the Superior Court (1954) was entered against the plaintiff for failure to answer interrogatories. The condition of the nonsuit was that it was to be vacated if the answers to the interrogatories were filed within thirty days. On April 27, 1960, the plaintiff filed a motion for extension of time to answer the interrogatories. When the case was called for trial in November, 1961, no action had been taken on this motion. At that time the plaintiff, who had prepared answers to the interrogatories, filed them with the clerk and the case then proceeded to trial. On November 9, the defendant presented a motion for directed verdicts, which was denied subject to its exception. On November 10, the jury returned verdicts for the plaintiff and her husband. These verdicts were recorded under leave reserved.
On November 14, the defendant filed a motion for a new trial on the grounds that the verdicts were against the evidence and the law and that the damages were excessive. The defendant also moved that verdicts be entered for it under leave reserved. On March 27, 1962, both motions were denied. On March 29, the clerk mailed a notice of the denial to Rauni V. Helin, one of the counsel of record for the defendant. Mr. Helin represented the defendant at the trial and filed and argued the above mentioned motions. The notice of the disposition of these motions was received by Mr. Helin on March 30, and a similar notice was received by Burton M. Stevens, one of the counsel of record for the
On April 16, the defendant filed a bill of exceptions based on the exception taken at the trial to the denial of its motion for directed verdicts and the exceptions filed on April 6 to the denial of its motions for a new trial and for the entry of verdicts in its favor under leave reserved.
In June, the defendant filed a motion “to vacate findings ’ ’ and a motion for leave to file a bill of exceptions late grounded on an exception to the denial of its motion for directed verdicts. On August 14, the plaintiff made a motion to “strike defendant’s exceptions from the record.”
The motions just described and the matter of the allowance of the bill were heard together.
1. The defendant argues that because of the plaintiff’s failure to comply with the terms of the conditional nonsuit entered on March 30, 1960, the case became ripe for judgment at the expiration of thirty days (the time within which
The plaintiff relies heavily on Cohen v. Industrial Bank & Trust Co. 274 Mass. 498. Because of its pertinency we shall discuss that decision in some detail. On November 7,1929, when the case came on for trial the defendant was defaulted. On November 8, the defendant filed a motion to remove the default, setting forth reasons that might have been found adequate for its removal. No action was taken until January 18,1930, when the plaintiff moved that the defendant’s motion of November 8 to remove the default be dismissed and that judgment be entered as of November 18. Except for the filing of the defendant’s motion on November 8, the case was otherwise ripe for judgment on November 18. The court granted the defendant’s motion to remove the default, denied the plaintiff’s motion for judgment, and ordered the case to be placed on a trial list. The sole question for decision, as stated by Rugg, C.J., was “whether the mere filing of . . . [the defendant’s motion] was sufficient to prevent the case from going to judgment, or whether the case automatically went to judgment” (p. 499). The plaintiff contended there, as the defendant does here, that the motion actually should have been brought to the attention of the court for affirmative action of some sort before the time when under the general rule the case would be ripe for judgment; otherwise, the case became ripe and went to
We are of opinion that the case at bar is controlled by the Cohen case. There it was held that the filing of a motion to remove a default was sufficient to prevent the case from going to judgment. We think that the motion here to extend the time for filing answers to the interrogatories filed before the expiration of the period stated in the conditional nonsuit likewise prevented the case from going to judgment on May 2, 1960. When the case was called for trial the plaintiff’s motion for an extension of time, never having been acted upon, was still alive and the judge by allowing the plaintiff’s answers to the interrogatories to be filed impliedly allowed the motion. See Krinsky v. Stevens Coal Sales Co. Inc. 309 Mass. 528, 532; Hill v. Trustees of Glenwood Cemetery, 323 Mass. 388, 392.
2. We turn now to the question whether the defendant seasonably claimed exceptions to the denial of its motions for a new trial and for the entry of verdicts in its favor under leave reserved. These motions were denied on March 27, 1962, and notice of such denial was received by Mr. Helin, one of the counsel of record, on March 30. Buie 72 of the Superior Court (1954) provides that exceptions to a “ruling . . . made in the absence of counsel shall be taken by a writing filed with the clerk within three days after the receipt from the clerk of notice thereof.” Exceptions to the denial of the motions were filed by Mr. Bowen, one of the counsel of record for the defendant, on April 6, which was more than three days after Mr. Helin was notified of the denial, but the filing was within three days from the time that Mr. Bowen received notice. If the exceptions must be filed within three days after receipt of the notice by one of the counsel, then the exceptions here were not filed seasonably. It is the defendant’s position that all of its counsel of record were entitled to notice and that the exceptions filed by Mr. Bowen were seasonable. The pertinent provisions of Buie 3 of the Superior Court (1954) read: “Anotice to a
Exceptions overruled.
The Second Case.
The defendant’s exceptions discussed above were based on the assumption that the case never went to judgment against it. But realizing that there was a possibility that the case may have gone to judgment, the defendant (petitioner here) brought this petition to vacate judgment. This petition was denied after hearing, subject to the petitioner’s exception. There was no error. We do not reach the merits of the case on which the judgment sought to be vacated is based. We assume for present purposes that the petitioner had a meritorious case. See Russell v. Foley, 278 Mass. 145. But the granting of a petition to vacate “rests largely, but not exclusively, in the sound discretion of the
Exceptions overruled.
The declaration also contained a count in which the plaintiff’s husband sought consequential damages.
A petition to vacate judgment brought by the defendant (to be discussed later) was also heard at that time.
This question comes here in the following circumstances. On February 8, 1963, the defendant made a motion to strike from the record the plaintiff's motion to extend the time for filing answers to the interrogatories and for entry of judgment in its favor. This motion was denied subject to the defendant's exception.
General Laws c. 231, § 113, as amended by St. 1945, e. 328, provides that the presiding judge may permit a bill of exceptions to be filed after the expiration of the time prescribed for such filing, if a party, through inadvertence, has failed to file the bill seasonably; but this can be done only before final judgment.