Soper v. Manning

158 Mass. 381 | Mass. | 1893

Holmes, J.

This is not a writ of review, but the summary proceeding to set aside a judgment in an action in which “the execution has not been satisfied in whole or in part,” given by Pub. Sts. c. 187, §§ 17-19. Skillings v. Massachusetts Benefit Association, 151 Mass. 321, 322. This fact makes a part of the respondent’s argument, based on the sections and decisions relating to writs of review, inapplicable.

1. The first exception is to the refusal of a general request to rule that the petition was insufficient in form. No particular defect was pointed out, and such a request is entitled to no more favorable consideration than a demurrer, which, it is settled, must point out any defect of technical accuracy of allegation which is relied upon. Windram v. French, 151 Mass. 547. Train v. Boston Disinfecting Co. 144 Mass. 523, 525. The only defects suggested are of the most minutely technical sort. We do not mean to imply that the petition was not sufficient in form. Certainly it was so in substance.

2. The fact that a previous petition had been dismissed without prejudice, by reason of certain formal defects, and not upon the merits, was not a bar to the present one. Hayes v. Collins, 114 Mass. 54.

3. If the allegation that the claim which was the foundation of the judgment was settled and finally adjudicated in the case of Soper v. Manning, 147 Mass. 126, would have been open to objection as too indefinite even for a summary proceeding like this, if the objection had been made at the outset, it nevertheless gave notice of the substantive fact relied on, and entitled the petitioner to introduce a certified copy of the record to prove it. Technical objection's to the form of allegations cannot be taken by objecting to evidence in support of them. Capron v. Anness, 136 Mass. 271, 272. Some criticisms are made on the record, but that is not before us.

4. No exception lies to the refusal of the court to continue the case in order to enable the respondent to examine the clerk, whom he had not summoned as a witness. Kittredge v. Russell, 114 Mass. 67. Pickering v. Reynolds,. 111 Mass. 83.

5. There was evidence of sufficient cause for a review. We cannot revise the finding or the discretion of the Superior Court. Boston v. Robbins, 116 Mass. 313. Keene v. White, 136 Mass. 23.

Exceptions overruled