Gardner v. Butler

78 N.E. 885, 193 Mass. 96, 1906 Mass. LEXIS 1158

• Court: Massachusetts Supreme Judicial Court
• Decided: October 17, 1906
• Status: Published

Opinion

Hammond, J.

The writ upon which the attachment was made was returnable on February 27, 1904, and on that day was duly entered. The defendant Johnson made no appearance, and on March 1, 1904, a default was entered.

At the trial of the present case the plaintiff contended that the original action went to judgment on March 4, 1904, that being the Friday next after the default. The record discloses no such judgment. On the contrary it shows that the default of March 1 was removed on April 11, in accordance with an agreement of the parties, and the defendant Johnson appeared; that on June 29 the plaintiffs Butler et als. filed a notice of an assignment for trial on July 9; that on the last mentioned day the defendant, not appearing, was again defaulted; that on July 15 judgment was entered on this last default; and that on August 8 of the same year the execution was issued. The record is simple and consistent with itself. No judgment was entered upon the first default.

The plaintiff in the present case contends, however, that even if no entry of judgment appears upon the record, still in law the case went to judgment on March 4, upon the first default, and the clerk should have made a record of it. The judgment, whenever made, must be by the order of the judge, and the duty of the clerk is simply to record this order. The trial judge found that no specific order for judgment was made on March 1 or March 4,1904. Nor was there any evidence of any standing or gener’al order of the district court that judgment should be so entered except so far as such order might be inferred from the existence of “ the custom . . . [of that court] ... in a civil action for liquidated damages, where the defendant is defaulted for non-entry of an appearance, for the clerk of said court to assess the damages and enter judgment on the Friday following the day of default; and that it is the rule of said court that all such actions are ripe for judgment upon default.” This is far from a finding that the rule required judgment to be entered.

The judge ruled that there was no such rule of the court requiring the entry of judgment upon default at any particular time and so imperative that in the absence of any record of a judgment a judgment could still be presumed.

The ruling was right. The record imports verity. The standing justice of the district court has “ power to make all proper rules for the conduct of the business of said court.” St. 1869, c. 416, § 5.

* He does not appear to have made or promulgated any rule upon the subject, and no general imperative order as to the matter of judgment upon default for lack of appearance appears to have been in existence. Whether or not the custom shown would be strong enough to support an entry of judgment appearing upon the record in case of an attack upon it as entered without authority, it is certain that such a custom is not the equivalent of a direct, special, unvarying order, so far at least as to lead to the presumption that a record showing no judgment, or showing subsequent action of the court inconsistent with judgment, is wrong. The record still stands as importing verity, and in accordance therewith it must be held that the case did not go to judgment until July 15, 1904. The case widely differs from Pierce v. Lamper, 141 Mass. 20, and other similar cases upon which the plaintiff relies.

This view of the main contention of the plaintiff renders it unnecessary to consider the exception to the admission of the statement of Johnson that he had entered an appearance. Its admission in no way could have prejudiced the plaintiff.

Exceptions overruled.

St. 1893, c. 396, § 59, incorporated in R. L. c. 160, § 45, was not mentioned in the record and was not referred to in the arguments or briefs.