Magee v. Flynn

245 Mass. 128 | Mass. | 1923

Rugg, C.J.

This proceeding is entitled- “ Petition for Writ of Review.” In substance and effect it is a motion to vacate judgment under G. L. c. 250, § 15. It was so treated by the judge of the Superior Court. Although called by a wrong name and otherwise informal, it ought to be considered on its merits for what it is. Davis v. National Life Ins. Co. 187 Mass. 468. See Maker v. Bouthier, 242 Mass. 20. There is nothing at variance with this in Clarke v. Backall, 171 Mass. 292. There ought to have been an averment in the motion that the execution had not been satisfied in whole or in part, but its omission was not fatal to the proceeding.

There is no requirement of statute that such a petition be supported by affidavits. It is proper that supporting affidavits be filed by those knowing material facts, either parties, counsel or others. See Willard v. Ward, 3 Mass. 23.

Striking a case from the docket is a judgment of dismissal and final. Karrick v. Wetmore, 210 Mass. 578. Shour v. Henin, 240 Mass. 240. The case was ripe for a motion to vacate judgment.

A genuine and honest misunderstanding as to the time of hearing on a motion to dismiss, out of which the striking from the docket arose, may be a sufficient ground for vacating a judgment. That may be described appropriately as accident or mistake. It cannot be said as matter of law that the facts set forth in the record could not be found to be sufficient to warrant the exercise of sound judicial discretion to vacate the judgment. Rollins v. Bay View Auto Parts Co. 239 Mass. 414, 423, 424. Ryan v. Hickey, 240 Mass. 46.

Order overruling demurrer affirmed,.