310 Mass. 12 | Mass. | 1941
On May 25, 1934, an automobile owned by the defendant Helen Crosby, Inc., and registered in its name, was operated with its consent by the defendant Francis J. Jordan, when the automobile struck the plaintiff’s intestate, causing injuries from which she died. The defendant The Employers’ Liability Assurance Corporation, Ltd., was the insurer of Helen Crosby, Inc., under a motor vehicle liability policy as defined in G. L. (Ter. Ed.) c. 90, § 34A, which provided insurance to the amount of $10,000 against liability for a single injury or death. After a trial in the Superior Court of an action of tort brought by the plaintiff against Jordan for causing the death of the plaintiff’s intestate, a finding was entered for the plaintiff on April 21, 1938, with damages assessed at $11,586.64, which was in excess of the ad damnum of $10,000. Nothing was done until December 5, 1938, when the plaintiff filed a waiver of so much of the damages as was in excess of the ad damnum. On December 12, 1938, apparently without action by any judge, the clerk entered judgment for the plaintiff for $10,000 damages and $20 costs, upon which execution issued on December 13, 1938.
On September 29, 1939, the plaintiff brought the present suit to reach and apply in satisfaction of the judgment the obligation of the defendant insurer, under G. L. (Ter. Ed.) c. 214, § 3 (10), and c. 175, § 113. The defendant insurer filed a plea that the cause of suit stated in the bill did not accrue within one year before the commencement of the suit. By G. L. (Ter. Ed.) c. 260, § 4, in its latest form in St. 1937, c. 385, § 9, a suit in equity of the class to which the present suit belongs “shall be commenced only within one year next after the cause of action accrues.” The judge “sustained” the plea (Dudley v. Sheehan Construction Co. 305 Mass. 144, 145) upon the only evidence introduced, which was a copy of the docket in the action of tort for caus
The right to begin a suit of the class to which the present suit belongs accrues upon the expiration of thirty days after judgment in the action of tort. G. L. (Ter. Ed.) c. 214, § 3 (10). Compare c. 175, § 113. If the judgment was in law rendered on December 12, 1938, the commencement of the present suit on September 29, 1939, was well within the year “next after the cause of action accrues” allowed by G. L. (Ter. Ed.) c. 260, § 4 (St. 1937, c. 385, § 9). But the defendant insurer contends that the action was “ripe for judgment” as soon after the finding made on April 21, 1938, as the twenty days allowed for claiming an appeal or filing a bill of exceptions (G. L. [(Ter. Ed.] c. 231, §§ 96, 113) expired, and that judgment followed as matter of course on the following Monday, at ten o’clock in the forenoon, under G. L. (Ter. Ed.) c. 235, § 1, and Rule 79 of the Superior Court (1932). Here there was not only a statute providing for the entry of judgments by the clerk in civil actions and proceedings ripe for judgment, but there was, what was lacking in Gardner v. Butler, 193 Mass. 96, a rule of the court directing the clerk, unless the party entitled to judgment otherwise requests in writing or the court otherwise orders, to enter judgment at ten o’clock in the forenoon on Monday of each week in civil actions and proceedings ripe for judgment. Rule 79 of the Superior Court (1932). Under such a rule judgment is rendered in the view of the law when it ought to be entered, even though the clerk fails to make any entry upon the docket. Gardner v. Dudley, 12 Gray, 430. Pierce v. Lamper, 141 Mass. 20. Davis v. National Life Ins. Co. 187 Mass. 468. Wallace v. Boston Elevated Railway, 194 Mass. 328. Shawmut Commercial Paper Co. v. Cram, 212 Mass. 108. Boston Bar Association v. Casey, 227 Mass. 46, 51. Warner v. Pittsfield, 231 Mass. 138, 141. Nugent v. Boston Consolidated Gas Co. 238 Mass. 221, 238. Porter v. Boston Storage Warehouse Co. 238 Mass. 298, 301. Cohen v. Industrial Bank & Trust Co. 274 Mass. 498, 504. If the contention of the defendant is sound, judgment was in law rendered on May 16, 1938, and the present suit begun on
The only ground advanced by the plaintiff in support of his contention that the action was not “ripe for judgment” on May 16, 1938, is that the finding for the plaintiff exceeded the amount of the ad damnum of his writ. There is no suggestion that the assessment of damages was due to accident or mistake or that a judgment following that finding was not the judgment that the court intended to render. Prenguber v. Agostini, 289 Mass. 222. Amory v. Assessors of Boston, 309 Mass. 162. Such a judgment was erroneous in that it did not conform to the amount claimed in the writ, but the defect resulted from an error committed by the court while acting within its jurisdiction, Kirby v. Donovan, 228 Mass. 86, 90; Paige v. Sinclair, 237 Mass. 482, 484; Kevorkian v. Superior Court, 295 Mass. 355, 357, rather than from a finding that the court was without power to make. Jochumsen v. Suffolk Savings Bank, 3 Allen, 87. Carroll v. Berger, 255 Mass. 132. Rogan v. Liberty Mutual Ins. Co. 305 Mass. 186. Accordingly, it has been held that a judgment in excess of the ad damnum is not void but voidable. Grosvenor v. Danforth, 16 Mass. 74. Hemmenway v. Hickes, 4 Pick. 497. Safford v. Weare, 142 Mass. 231. The defect could have easily been corrected by an amendment to the writ, increasing the ad damnum. G. L. (Ter. Ed.) c. 231, § 51. Luddington v. Goodnow, 168 Mass. 223. Laxton v. Hay, 211 Mass. 463. Kinnear v. General Mills, Inc. 308 Mass. 344. No such step was taken. Kelly v. Foley, 284 Mass. 503, 508. A judgment which at the most is only voidable stands until it is modified, vacated or set aside in direct proceedings brought in some one of the various methods provided by law to accomplish the purpose. Reid v. Holmes, 127 Mass. 326. Joyce v. Thompson, 229 Mass. 106. Sciaraffa v. Debler, 304 Mass. 240. Noyes v. Bankers Indemnity Ins. Co. 307 Mass. 567.
It appears from a copy of the docket entries in the case, G. L. (Ter. Ed.) c. 231, § 135, Home Owners’ Loan Corp.
The filing by the plaintiff on December 5, 1938, of a waiver of all damages in excess of the ad damnum did not remove any obstacle in the path of this litigation that prevented it from going to judgment, because there was none, but the waiver was in substance a remittitur which as a practical matter served to correct a defect in an existing judgment. Hutchinson v. Crossen, 10 Mass. 251. King v. Howard, 1 Cush. 137. Hemmenway v. Hickes, 4 Pick. 497. Look v. Luce, 140 Mass. 461. Howard v. Fall River Iron Works Co. 203 Mass. 273.
The bill was filed more than a year after the plaintiff’s cause of suit had accrued. G. L. (Ter. Ed.) c. 260, § 4, as most recently amended by St. 1937, c. 385, § 9. The interlocutory decree sustaining the plea of the corporate defendant must be affirmed. A statutory remedy which prescribes a period during which resort to it may be had is not available after that period has elapsed. Crosby v. Boston Elevated Railway, 238 Mass. 564. Bickford v. Furber, 271 Mass. 94. Choate v. Assessors of Boston, 304 Mass. 298. Old Colony Railroad v. Assessors of Quincy, 305 Mass. 509. Boston v. Cable, 306 Mass. 124.
Interlocutory decree affirmed.
