Gallagher v. Silberstein

Massachusetts Supreme Judicial Court

Gallagher v. Silberstein

64 N.E. 402, 182 Mass. 20, 1902 Mass. LEXIS 940

CourtMassachusetts Supreme Judicial Court

DecidedJune 18, 1902

StatusPublished

Cited by3 cases

This text of 64 N.E. 402 (Gallagher v. Silberstein) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gallagher v. Silberstein, 64 N.E. 402, 182 Mass. 20, 1902 Mass. LEXIS 940 (Mass. 1902).

Pincite

Opinion

Holmes, C. J.

This is a petition to vacate a judgment against the petitioner. He had claimed a jury and afterwards suffered a default. Subsequently the respondents, the plaintiffs in the action, waived a trial by jury, the judge assessed the damages, and the judgment was entered which now it is sought to set [21]*21aside. On the hearing a ruling was asked that the judge had no power to assess the damages without a jury, and an exception was taken to a contrary ruling.

W. C. Wait, (J. J. Q-allagher with him,) for the petitioner. W. H. S. Kollmyer, for the respondents.

The statute provides that “ When the defendant is defaulted in any stage of the proceedings, the court shall award such judgment for the plaintiff as it shall upon inquiry find to be just and proper; unless the plaintiff or defendant moves to have the damages assessed by a jury, in which case they shall be so assessed.” Pub. Sts. c. 171, § 2. This language leaves no room for doubt. The words on their face require a motion specifically addressed to the assessment of damages, or in other words a motion made after the default. Therefore having claimed a jury trial when the action was entered can do the petitioner no good. Indeed if the petitioner had not claimed a jury his right to demand one for the assessment of damages would have been lost. Pub. Sts. c. 167, § 69. Vitrified Wheel & Emery Co. v. Edwards, 135 Mass. 591. It was not • intended by Pub. Sts. c. 171, § 2, that a default should better a defaulting party’s position so as to restore a right to a jury when it had been lost before. If a default has been entered properly, it does not matter at what stage of the proceedings it was suffered or on what ground. Balton-Ingersoll Co. v. Fiske, 175 Mass. 15, 19. It follows that the court was right in proceeding without a jury, as neither party moved to have the damages assessed by one. See Carleton v. Byington, 17 Iowa, 579, 580.

Exceptions overruled.

Free access — add to your briefcase to read the full text and ask questions with AI

Holmes, C. J.

This is a petition to vacate a judgment against the petitioner. He had claimed a jury and afterwards suffered a default. Subsequently the respondents, the plaintiffs in the action, waived a trial by jury, the judge assessed the damages, and the judgment was entered which now it is sought to set [21]*21aside. On the hearing a ruling was asked that the judge had no power to assess the damages without a jury, and an exception was taken to a contrary ruling.

W. C. Wait, (J. J. Q-allagher with him,) for the petitioner. W. H. S. Kollmyer, for the respondents.

The statute provides that “ When the defendant is defaulted in any stage of the proceedings, the court shall award such judgment for the plaintiff as it shall upon inquiry find to be just and proper; unless the plaintiff or defendant moves to have the damages assessed by a jury, in which case they shall be so assessed.” Pub. Sts. c. 171, § 2. This language leaves no room for doubt. The words on their face require a motion specifically addressed to the assessment of damages, or in other words a motion made after the default. Therefore having claimed a jury trial when the action was entered can do the petitioner no good. Indeed if the petitioner had not claimed a jury his right to demand one for the assessment of damages would have been lost. Pub. Sts. c. 167, § 69. Vitrified Wheel & Emery Co. v. Edwards, 135 Mass. 591. It was not • intended by Pub. Sts. c. 171, § 2, that a default should better a defaulting party’s position so as to restore a right to a jury when it had been lost before. If a default has been entered properly, it does not matter at what stage of the proceedings it was suffered or on what ground. Balton-Ingersoll Co. v. Fiske, 175 Mass. 15, 19. It follows that the court was right in proceeding without a jury, as neither party moved to have the damages assessed by one. See Carleton v. Byington, 17 Iowa, 579, 580.

Exceptions overruled.

Cite This Page — Counsel Stack

Bluebook (online)

64 N.E. 402, 182 Mass. 20, 1902 Mass. LEXIS 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gallagher-v-silberstein-mass-1902.

Opinion

Related

Cite This Page — Counsel Stack