11 Mass. App. Ct. 1018 | Mass. App. Ct. | 1981
On December 5, 1979, Mullen brought an action in the Superior Court under G. L. c. 254, §§ 4, 5, to enforce its lien for labor and building materials supplied to the defendants F. P. Associates, Inc., and Frederick Purrington in connection with the construction of a dwel
In denying relief after reconsideration, the judge “in effect, imposed the most severe sanction open to him — judgment against the defendants.” Ticchi v. Ambassador Cab, Inc., ante 912 (1981). While the Banouns’ conduct in relying upon Purrington’s promise to defend the suit for them was negligent, it is likely that the first motion to vacate the judgment would have been allowed had their counsel submitted the affidavit that accompanied the motion for reconsideration. Punishing the Banouns for the oversight of their first counsel by exposing them without a day in court to the possible loss of their home will do little to enhance public perception of the civil justice system and may well precipitate additional litigation in the form of a malpractice action against that lawyer. See Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 440 n.10 (1979). It has been said that “the courts have been reluctant to attribute to the parties the errors of their legal representatives.” Barber v. Turberville, 218 F.2d 34, 36 (D.C. Cir. 1954). See
So ordered.