118 Mass. 61 | Mass. | 1875
Final judgment having been entered, without any error or mistake, in accordance with the ordér of the court, when all parties were before it, the court had no authority, on motion after the term at which such judgment was entered, to vacate the judgment or stay the execution. Medford v. Dorsey, 2 Wash. C. C. 433. Sibbald v. United States, 12 Pet. 488, 492. Bank of United States v. Moss, 6 How. 31, 38. Avery v. United States, 12 Wall. 304. Lander v. Gordon, 7 M. & W. 218. Terry v. Briggs, 12 Cush. 319. Barnes v. Smith, 104 Mass. 363.
This is not a case in which the necessary parties had not been summoned in before the judgment was entered, as in Ex parte Crenshaw, 15 Pet. 119, and Stickney v. Davis, 17 Pick. 169; or in which, by misprision of the clerk or other mistake, the judgment entered was not such as was intended, as in The Palmyra, 12 Wheat. 1,10; Capen v. Stoughton, 16 Gray, 364; and Lucy v. Dowling, 114 Mass. . It is still less like those in whicl there had been a mere omission to enter the proper continuances, and the motion to bring the case forward was made before final judgment, as in all the other cases cited in Marshall v. Merritt, 103 Mass. 45.
The decision in Marshall v. Merritt cannot be extended by the general expressions in the opinion beyond the peculiar circumstances of the case. Before the judgment had been fully made up or the costs taxed, the party against whom it was rendered sued out a writ of audita querela, and the motion to bring forward the original suit was made at the next term after judgment on the audita querela. See Foss v. Witham, 9 Allen, 572. Whatever may be the weight of that decision, if the same question should be again presented for adjudication, it affords no precedent for the action of the judge below in the present case. Exceptions sustained.
The St. of 1875, c. 33, provides that if upon a petition for setting aside a judgment in any civil action, in which the execution has not been satisfied, “ the court shall be of opinion, after notice to the adverse party, that there is sufficient cause, for which by law a review should be granted, the court may vacate said judgment, stay and supersede any execution thereon, and order said action to be brought forward on the docket of the court, to be tried
