279 Mass. 495 | Mass. | 1932
This is a petition under G. L. c. 250, § 15, to vacate a judgment entered on Friday, August 1, 1930, for the plaintiff in an action pending in the Municipal Court of the City of Boston, wherein the present respondent was plaintiff and the present petitioner was defendant. On July 29, 1930, notice of a finding by the court in favor of the plaintiff was left at the office of Mr. Higgins, the attorney for the defendant, who was then absent in Maine. Receipt of the notice was acknowledged by signature, “John J. Higgins, by M. A. M.” Actual notice of the finding was received indirectly by the absent attorney in the evening of Saturday, August 2, 1930. He immediately returned to his office in Boston and on Monday, August 4, 1930, found the clerk’s notice on his desk. On that day the present petition was filed. On the day following, the defendant in the original action filed a request for a report and, on the second day following, filed a draft report. Both were subsequently returned to him. The present petition was allowed in the Municipal Court. The respondent appealed. At the hearing in the Superior Court requests for rulings presented by the petitioner were denied. The trial judge made findings of the tenor following: “I do not find that counsel for Richard F. Sweeney was negligent in his conduct of this case, his absence from his office is well justified, but Rule 37 of the Municipal Court of the City of Boston is peremptory in its nature, and failure to comply with its terms cannot be relieved. I therefore grant defendant’s requests for rulings numbers 1, 2, 3, 4, 5, 6, 7, 8, and the petition to vacate is denied.” The exceptions of the petitioner bring the case here.
The petition sets forth in substance the facts already narrated, and alleges that it was the intention of the at
A petition to vacate judgment is addressed largely, although not exclusively, to the sound discretion of the trial judge. The trial judge in the case at bar does not appear to have exercised his discretion but to have denied the petition as matter of law. We think that that is the true construction of his findings and rulings already quoted. His findings, so far as they go, are favorable to the petitioner. The attorney for the petitioner is exonerated from blame and his absence is found to have been justified. The reference in the findings and rulings to Rule 37 of the Municipal Court of the City of Boston must be deemed to be a clerical error or a mistake, for that rule relates to procedure after the establishment by the trial judge of the report to the Appellate Division. The original case here under consideration never reached that stage. We assume that reference was intended to Rule 36 of the Municipal Court of the City of Boston (1928). [The substance of that rule was Rule 37 of the rules of that court of 1922.] That rule, so far as here material, is in these words: “The party requesting a report shall file a draft thereof within five days after notice of the finding in the cause, provided that the cause be then ripe for judgment, except for the pendency of requests for rulings or request for a report; otherwise within five days after the cause becomes so ripe for judgment. ... If no draft report is filed as above required, the cause shall proceed as though no claim of report had been made.” The relevant statute then operative (see now St. 1931, c. 426, § 116), was G. L. c. 231, § 108. It there was provided that a party aggrieved by any ruling of law by
The question is whether upon the facts already narrated the ruling of law made by the trial judge, to the effect in substance that the time had gone by when the petitioner could get any report of his case, was right. It would be vain to exercise discretion to vacate a judgment if, when such vacation had taken place, the petitioner could as matter of law take no benefit thereby and when the only course open to the trial court under the governing statute and rule would be to enter the same judgment again. The answer to the question thus presented depends upon the interpretation of the words in the statute requiring request for report “within two days after notice of the ruling,” and of the words in Rule 36 requiring the filing of a draft report “within five days after notice of the finding.”
The precise point to be decided in this connection is the meaning of the words “within two days after notice” in the statute and “within five days after notice” in the rule. Specifically, do they mean within the stated time after notice sent, or after notice delivered at office, home, or address; or do they mean after notice actually received by the person entitled to it?
It may be presumed that the “notice” referred to in both statute and rule is the notice required by G. L. c. 218, § 46, to the effect that in a district court (which includes the Municipal Court of the City of Boston, G. L. c. 4, § 7, Seventh, as most recently amended by St. 1931, c. 394, § 208), “when a decision is rendered in an action, except in open court, the clerk of the court shall forthwith give notice thereof to the parties or to their attorneys.” Neither the statute nor any rule of the Municipal Court of the City of Boston prescribes how such notices shall be given by the clerk.
Several decisions support the proposition that, in the absence of other governing provisions, a notice designed to
It is to be observed that the notice here involved is not required to be given by a party as a condition to the taking of further steps in procedure, such as notice of filing exceptions, Chertok v. Dix, 222 Mass. 226, or of filing motions, Gloucester Mutual Fishing Ins. Co. v. Hall, 210 Mass. 332, or of the filing of petitions to establish exceptions, Thorndike, petitioner, 270 Mass. 334, or the giving of notice of personal injuries, Schneider v. Boston Elevated Railway, 259 Mass. 564, 566, or the giving of notices according to stipulations in contracts, McCord v. Masonic Casualty Co. 201 Mass. 473. There must be strict compliance with requirements of that nature. They relate to matters where the essential facts to be embodied in the notice are known to the person required to give the notice, and the notice is designed to draw the attention of his adversary to those facts. That principle is not applicable in the case at bar. The principle of cases like Bath Iron Works, Ltd. v. Savage, 262 Mass. 123, and Herbert v. G. E. Lothrop Theatres Co. 273 Mass. 462, is not pertinent because those decisions rest upon observance of peremptory regulations of statutes. Boston Morris Plan Co. v. Barrett, 272 Mass. 487, is not relevant to the present issues.
The notice here involved is required to be given by a public officer. Its purpose is to enable a party to learn of a decision of his case by the court to the end that he may.
The statute in connection with the preexisting law as applied to the facts disclosed on this record bears some analogy to that under examination in Dimick v. Barry, 211 Mass. 165, where it was held that actual presentation of a document to the mayor of a city was required and that the time of limitation for his action did not begin to run until such presentation. See Tuttle v. Boston, 215 Mass. 57.
The purpose of the statute in the light of the facts here disclosed renders inapplicable the principle held to be con
Questions of difficulty may often arise whether an attorney or party may not have been negligent with reference to the case, or may not have been justified in absence, so that notice did not reach him through his fault. Facts of that nature are resolved in favor of the petitioner by the finding of the judge.
In the circumstances here disclosed we are of opinion that the period of two days specified in the statute did not begin to run until knowledge of the substance of the notice actually came to the attorney for the defendant in the original action.
It does not appear who acknowledged receipt of the notice by signature “John J. Higgins, by M. A. M.” There is no finding with respect to this subject. There is nothing to indicate who “M. A. M.” was. Initials do not constitute a name. Volpe v. Sensatini, 249 Mass. 132, 134. There was no attempt by the trial judge to draw inferences from all the evidence before him. The finding for the respondent was not general but was in effect based upon rulings of law. It cannot be presumed in these circumstances that the notice was delivered to one authorized to receive it in behalf of the attorney with all the implications thereby involved.
The question remains whether the petitioner acted with the requisite dispatch after knowledge of the contents of the notice reached his attorney. The request for a report was filed on Tuesday, August 5. The words of the statute and of the rule, “after notice, ” manifestly refer in their context to succession of days in point of time from and subsequent to the day when knowledge of the substance of the notice was received. Although “after” may some times signify “subject to,” or “relative priority” and “subordination,” Lamb v. Lamb, 11 Pick. 370, 378, Treadwell v. Cordis, 5 Gray, 341, 353, one of its common meanings relates to time. In computing time from a date, act or event, the settled rule, here applicable, is to exclude the day from
The conclusion follows that there was error in granting several of the rulings requested by the respondent. The effect of granting requests 1 and 2 was to rule that, as matter of law on the facts set forth in the exceptions and upon the findings made, the petitioner was not entitled to relief. That was error. The trial judge did not reach the consideration of the petition on its real merits and did not undertake the ascertainment of the facts which should move the court to the exercise of discretion whether the petition ought to be granted or denied. He did not pass upon the issues pertinent to the decision of the case as set forth in Russell v. Foley, 278 Mass. 145, and Manzi v. Carlson, 278 Mass. 267, where the principles of law governing a case like the present are stated at length. It was error, therefore, to grant request 3. Request 5 was not rightly granted. As already pointed out, the petitioner moved with diligence after knowledge of the notice of the decision by the judge in the original case had reached his attorney, and therefore it was not shown that he was trying to circumvent any rule or statute. It was error to grant request 7, to the effect that there was no duty on the part of the clerk of the court to notify the attorney of the findings. It was contrary to the precise requirement of G. L. c. 218, § 46, which imposes that duty on the clerk. Although in that section the word “decision” is used, it is a word sufficiently
The requests for rulings presented by the petitioner need not be considered because, in view of the grounds on which this decision rests, they are not likely to arise in this form at further hearings.
Exceptions sustained.