Mitchell v. Thomas

81 N.E. 198, 195 Mass. 354, 1907 Mass. LEXIS 1305

• Court: Massachusetts Supreme Judicial Court
• Decided: May 14, 1907
• Status: Published

Opinion

Knowlton, C. J.

This is an action upon a promissory note. On March 5,1906, the plaintiff filed a claim for a trial by jury. On March 14, 1906, she waived this claim, and the case was subsequently put upon the list of cases for trial without a jury. When the case was reached, the defendant, having supposed until then that it was for trial by jury, filed a motion that it be transferred to the jury list, and accompanied the motion by an affidavit, stating that, at the time of entering the appeal, he gave to one of the assistant clerks of the court a demand for a trial by jury. He called as a witness the assistant clerk to whom he said he handed the demand, and this witness testified, in substance, that he had no knowledge or recollection of such a demand, although he remembered that he had some conversation with the defendant’s counsel about the case. The judge denied the defendant’s motion and ordered the case to stand for trial without a jury. Afterwards the defendant was defaulted, his attorney stating that he denied the jurisdiction of the court. The defendant excepted to the order for the entry of. the default.

It is to be assumed that the judge was not satisfied of the truth of the affidavit, which contradicted the record of the court. Such a record imports verity, and is the best evidence of the proceedings which it purports to register. The recollection of the assistant clerk did not help the defendant upon the material point, and the judge was not bound to believe the affiant, against the record, which was supported by the official oath of the recording officer.

Exceptions overruled.