Powdrell v. DuBois

274 Mass. 106 | Mass. | 1931

Rugg, C.J.

The record in this case consists of a petition to vacate a judgment entered pursuant to a rescript from this court, 271 Mass. 394; a denial of the same made on July 14, 1930; and a motion to amend the petition, also denied after hearing on the same day. On July 18, 1930, the petitioner filed a motion that a statement of the facts on which the denial of the petition was based be made by the trial judge. On July 30, 1930, the petitioner claimed an appeal from the order of the trial judge “decisive of this case founded upon matter of law apparent on the record.” On August 19, 1930, a statement of facts was filed by the trial judge.

This is an action at law. It is correctly brought as a separate proceeding. Maker v. Bouthier, 242 Mass. 20, 22. The judge’s findings of fact, not being incorporated in a report or in a bill of exceptions, are no part of the record. Cressey v. Cressey, 213 Mass. 191. Everett-Morgan Co. v. Boyajian Pharmacy, 244 Mass. 460, 461. No change in this respect was wrought by St. 1929, c. 265, § 1, amending G. L. c. 231, § 135. The present case does not fall within any one of the classes of cases wherein appeal is now available for bringing to this court for review errors alleged to have been committed by the Superior Court in actions at law. G. L. c. 231, § 96, as amended by St. 1928, c. 306, § 2. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133, 134. Clark v. Barringer, 273 Mass. 107. The appeal is not rightly before us.

If, however, the statement of facts filed by the judge be considered as a part of the record and as properly before us, no error is disclosed. The concluding part of that statement is that the petition was denied both as matter of law and in the exercise of discretion, and that no exception was taken. The granting of a petition to vacate judgment generally rests in sound judicial discretion. Lee v. Fowler, 263 Mass. 440, 443. There is no ground for inferring abuse of that discretion. The argument of the plaintiff is that the statement of facts discloses error in that the trial judge, who also presided at the original trial of the case, thought that the verdict first returned by the jury .was against the weight of the evidence, but declined to grant the motion of the present petitioner (who was defendant in the original action) to set it aside and granted her motion to enter a verdict for her under leave reserved, thinking that thereby a second trial by jury would be avoided. Goetze v. Dominick, 246 Mass. 310. But the statement of facts shows that all these matters were considered by the trial judge in reaching his conclusion to deny the present petition. In all this there was no error of law. Alpert v. Mercury Publishing Co. 272 Mass. 43. Beserosky v. Mason, 269 Mass. 325.

Appeal dismissed.