18 Mass. App. Ct. 943 | Mass. App. Ct. | 1984
The defendant was convicted on October 24,1978, ofraping the plaintiff, who on May 13, 1981, brought this action for physical injuries, emotional
1. For purposes of decision we assume that, under the rule of Farley v. Sprague, 374 Mass. 419, 423-426 (1978), the judge was required to accept the veracity of the defendant’s assertion that his first counsel had undertaken to defend the claim and had failed to do so. It does not follow, in these circumstances, that Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 431 & n.10. (1979), mandates relief. Prior Massachusetts law had tended to discourage relief from judgments based upon attorneys’ neglect. “[A]s a general rule, . . . review should not be granted when the petitioner’s only cause of complaint grows out of the negligence or misconduct of his attorney, but he should be left to seek his remedy against him who is responsible for the wrong. Any other rule would tend to fraud and to laxity of practice. ...” Sylvester v. Hubley, 157 Mass. 306, 308 (1892). “Commonly . . . [relief from judgment] ought not to be granted when the petitioner’s cause of complaint grows out of the negligence or misconduct of his attorney . . . . ” Kravetz v. Lipofsky, 294 Mass. 80, 83 (1936). See Hackney v. Butler, 339 Mass. 605, 608-609 (1959) (reversing trial judge’s orders vacating judgment to relieve party of consequences of his counsel’s negligence); Mede v. Colbert, 342 Mass. 166, 169 (1961)
2. Under Mass.R.Civ.P. 54(c), 365 Mass. 821 (1974), a judgment by default cannot exceed in amount that prayed for in the demand for judgment. The larger judgment was not void in its entirety, however, but was susceptible of correction in the manner ordered by the judge. Examples include Fong v. United States, 300 F.2d 400, 412-414 (9th Cir. 1962); Becker v. S.P.V. Constr. Co., 27 Cal. 3d 489, 493-495 (1980); Kawasaki Kisen Kaisha, Ltd. v. Indomar, Ltd., 173 Conn. 269 (1977); Columbia Valley Credit Exchange, Inc. v. Lampson, 12 Wash. App. 952, 954-957 (1975).
The judgment of September 23, 1982, is affirmed.
So ordered.
See Commonwealth v. Cullen, 8 Mass. App. Ct. 910 (1979).