Cruthird v. Hill

796 N.E.2d 405, 440 Mass. 1011, 2003 Mass. LEXIS 703

Opinion

In August of 2002, Cruthird commenced a civil action in the Superior Court. In December of that year, a default entered against the defendant in that action. The following month, on the defendant’s motion, the default was removed. Cruthird then filed his G. L. c. 211, § 3, petition seeking relief frpm the removal of the default. The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Cruthird has failed to satisfy his burden under rule 2:21 (2). First, he has failed to indicate whether he sought relief in the Appeals Court pursuant to G. L. c. 231, § 118, first par., or why such relief would not be adequate. “Review under G. L. c. 211, § 3, does not lie where review under c. 231, § 118, would suffice.” Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019-1020 (1996), and cases cited. Second, he has an adequate alternative remedy insofar as he may pursue his claims after any final adverse judgment. “We have said repeatedly that relief under G. L. c. 211, § 3, is not a substitute for ordinary appellate review.” Pandey v. Pudlo, 416 Mass. 1008 (1993), citing Francis v. District Attorney for the Plymouth Dist., 388 Mass. 1009, 1010 (1983), and cases cited.

Judgment affirmed.