278 Mass. 267 | Mass. | 1932
This is a petition to vacate a judgment entered in the Superior Court and to remove default in an action wherein the present respondent was plaintiff and the present petitioner was defendant.
The original action was in tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff therein while traveling in an automobile upon a public way because of the negligence of the defendant therein while he was operating another automobile. The trial judge in the case at bar found as “a fact that the injury to Gertrude Carlson which was the basis of the recovery in the original action was not caused by any negligent act of A. S. Manzi, the petitioner herein.” There was ample evidence to support that finding. The contrary has not been argued. The effect of that finding is to show that the petitioner had a meritorious defence to the action in which the judgment here sought to be vacated was entered. Thus one essential element of proof in order to enable the petitioner to prevail is established. Mellet v. Swan, 269 Mass. 173.
The petitioner must also show that his own conduct with reference to the action has not been so reprehensible from
Sylvester v. Hubley was a petition for review and not for vacation of judgment. The two proceedings differ somewhat in nature and in procedure. The principles which govern the exercise of judicial discretion in determining whether to grant relief, so far as here involved, and the extent of review by this court, are the same in both. Skillings v. Massachusetts Benefit Association, 151 Mass. 321. Soper v. Manning, 158 Mass. 381, 384. Boston v. Robbins, 116 Mass. 313. Keene v. White, 136 Mass. 23. Hunt v. Simester, 223 Mass. 489, 492. Marsch v. Southern New England Railroad, 235 Mass. 304, 305. Therefore, the trial judge rightly regarded himself as bound by the prin
The relevant part of the decision relied upon by the trial judge is in 157 Mass, at pages 308-309, in these words: u It is true, as a general rule, that a 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, greatly to the detriment and delay of honest suitors. On the other hand, we are not prepared to lay down an absolute rule of law that in no case can a review be granted where the error complained of was due to the negligence or misconduct of the petitioner’s attorney. A case might be supposed in which such a rule would work great injustice. The statute gives the court power to prescribe such terms in granting the review as will reasonably protect the interests of the respondent. It was evidently the purpose of the Legislature to give the court much latitude in determining what justice requires in each particular case.” That statement means that negligence or misconduct of an attorney is not necessarily a bar to a petition to vacate judgment. The petitioner here apparently had no- attorney to represent him in the original action against him. The question presented in the ease at bar is whether the conduct of the party defendant such as is disclosed on this record as matter of law bars such a petition.
The petitioner testified that he had no notice of the original action against him. That evidence was received without objection and, although contradicted by the officer who made the service, the judge may have believed the petitioner. The original writ and return do not appear in the record, although the petition alleged that the return of the officer showed personal service. The petitioner further testified that the first knowledge he had of the action was when he received from the clerk of the court a postal card to the effect that he had been defaulted (see G. L. c. 231, § 58, as amended by St. 1931, c. 81); that thereupon he
It appears from testimony of the attorney for the original plaintiff that as the representative of an insurance company he had settled by payment of money a claim presented by the wife of the original defendant, riding with him in his automobile at the time of the collision of automobiles on which the original plaintiff’s case rested. Whatever may have been the respective legal rights of the several parties, it may well have seemed to the present petitioner that there was some mistake in bringing an action against him for
If it be assumed that the judge’s statement, namely, “I do not rule that the negligence of the original defendant in not appearing and defending ... or in not giving the summons to his attorney . . .,” means that he found that the summons came to the hand of the. defendant, that does not alter the conclusion to be reached.
The precise facts found by the trial judge on this aspect of the case are not set out in the record. He does not ex
It has been said many times that disposition of a petition for vacation of judgment is addressed largely to the sound discretion of the trial judge. That is the general principle. Yetten v. Conroy, 165 Mass. 238. Lee v. Fowler, 263 Mass. 440, 443, and cases cited. Beserosky v. Mason, 269 Mass. 325, 328, and cases cited. Powdrell v. DuBois, 274 Mass. 106. Waltham Bleachery & Dye Works v. Clark-Rice Corp. 274 Mass. 488, 490. Questions of law may be raised at a hearing on such petition and there may be abuses of discretion which this court will correct. Silverstein v. Daniel Russell Boiler Works, Inc. 268 Mass. 424. Mellet v. Swan, 269 Mass. 173. Alpert v. Mercury Publishing Co. 272 Mass. 43, 45. In the light of this general principle, it cannot be said that there was error of law in the denial of the requests already summarized. Those requests rest on the proposition that whatever, is or ought to be the conduct of the reasonable man in stated circumstances sets the standard by which all must be judged and by which sound judicial discretion must be bounded. Apart from the difficulty of formulating a precise definition of reasonable care and diligence as applied to facts like these (see Gaynor v. Old Colony & Newport Railway, 100 Mass. 208, 214; Keith v. Worcester & Blackstone Valley Street Railway, 196 Mass. 478, 482, 483; Altman v. Aronson, 231 Mass. 588, 591, 592), we do not think the requests state accurately the pertinent rule of law. One may be stupid, or ignorant, or otherwise under disability so as not to be capable of exercising reasonable care and diligence with respect to an action brought against him in court, and yet be found by the court, even after judgment has been entered against him, to have such a meritorious defence as to be the
One further point to be decided is whether there has been abuse of discretion. That is raised by the request for a ruling that the petition could not be maintained. That subject is discussed at large with citation of authorities in Russell v. Foley, ante, 145. The discussion need not be repeated. The question is not whether we should decide the case on the printed record in the same way. Although the case at bar is close to the line, it cannot in our opinion quite be said that the granting of the petition constituted abuse of discretion.
Exceptions overruled.