263 Mass. 440 | Mass. | 1928
The facts relevant to the grounds of decision of these two cases are these: Action of tort was brought by James F. Lee, hereafter called the plaintiff, against Orra A. P. Fowler, hereafter called the defendant, to recover compensation for injuries sustained by the plaintiff because of the negligent conduct of the defendant. The case went to trial and on May 19,1927, verdict was returned for the plaintiff, on which judgment was entered on July 5, 1927. The defendant was a minor under the age of twenty-one years, without guardian appointed by the court of probate, and no guardian ad litem was appointed for him in that action. On July 5,1927, he filed a petition in the Supreme Judicial Court for a writ of error to reverse such judgment, assigning as error his minority without guardian to act for him. On July 6, 1927, a writ of error and writ of scire facias issued, both returnable on the first Monday of August, 1927. It does not appear when service was made upon the writ of error, but the return on the same is dated July 29, 1927. Before the date
The Superior Court had jurisdiction to entertain and act upon the plaintiff’s motion to vacate the judgment after the writ of error had been sued out and before the return day thereon. By G. L. c. 250, § 14, it is provided, “If final judgment has been rendered in a civil action, the court in which it was entered may, within three months thereafter, if the execution has not been satisfied in whole or in part, vacate it, upon the motion in writing of the prevailing party, and dispose of the case as if it had not been entered. Such motion shall be filed in the case and, except by special order of the court, no bond shall be required.” The terms of this section are absolute and unqualified. No exceptions are stated. Its force and Validity have been recognized. Marsch v. Southern
The suing out of the writ of error did not deprive the Superior Court of jurisdiction of the original case still pending before it. The writ of error is a common law process and procedure under it is according to the common law. It is an independent action distinct and separate from the case, judgment in which is sought to be reversed. Perkins v. Bangs, 206 Mass. 408, 412. Hanzes v. Flavio, 234 Mass. 320, 327. Commonwealth v. Marsino, 252 Mass. 224, 227. G. L. c. 250, § 2.
The judgment is not affected by the bringing of the writ of error unless there is also a supersedeas, but remains in full force unless and until impaired by some mandate of court entered upon the writ of error. Goodrich v. Wilson, 135 Mass. 31, 33. Duart v. Simmons, 236 Mass. 225, 227. O’Loughlin v. Overton, 68 Kans. 92.
The writ of error does not bring into the Supreme Judicial Court the original case. That remains in the court in which it went to judgment.
The action of the Superior Court in vacating the judgment of July 5, 1927, was within its power. Although the judgment against a minor is not void but voidable at the election of the minor, it is of such precarious value to the plaintiff that it might be vacated on his motion under G. L. c. 250, § 14. Rollins v. Bay View Auto Parts Co. 239 Mass. 414, 422, 423. See Johnson v. Waterhouse, 152 Mass. 585.
The granting of a motion to vacate a judgment rests largely in sound judicial discretion. There is no foundation for the inference that there has been abuse of such discretion. Hunt v. Simester, 223 Mass. 489, 492. Rollins v. Bay View Auto Parts Co., supra, page 423. Porter v. Travelers Ins. Co. 236 Mass. 524. Ryan v. Hickey, 240 Mass. 46, 47. Although it would have been proper to appoint a guardian
It is apparent from the return of the action in the Superior Court made on the writ of error that the errors of which complaint was made in the assignment of errors had been wiped out by the vacation of the judgment. Writ of error lies only to reexamine a judgment. G. L. c. 250, § 3. After the vacation of the judgment the case stood as if no judgment had been entered. Goodrich v. Bodurtha, 6 Gray, 323. When the judgment had been vacated, there was nothing upon which the writ of error could operate. The proper disposition was to dismiss it. Cherry v. Cherry, 253 Mass. 172,176,177.
In the writ of error the exceptions of the defendant in error are sustained and the writ is to be dismissed. In the action of tort the defendant’s exceptions are overruled.
Ordered accordingly.