Radclyffe v. Barton

28 N.E. 148, 154 Mass. 157, 1891 Mass. LEXIS 78

• Court: Massachusetts Supreme Judicial Court
• Decided: June 26, 1891
• Status: Published

Opinion

Allen, J.

The cause was finally disposed of by the entry of judgment for three hundred dollars on the default. There was no fraud nor error nor mistake in the entry of that judgment, as was the case in Edson v. Edson, 108 Mass. 590. Stickney v. Davis, 17 Pick. 169. Capen v. Stoughton, 16 Gray, 364. The term of court had closed. Several more terms had also passed. After all this, the court on a mere motion assumed to vacate the judgment, to bring forward the action, to allow an amendment increasing the ad damnum, and to enter judgment against the plaintiff in error for a larger sum. We need not consider whether it is to be presumed that notice of the motion was given to the plaintiff in error or not. In the assignment of errors he sets forth that no notice was given to him; but by his agreement he waives this. It would be more satisfactory to have had this fact proved, if it existed; but whether notice was given or not, it was not in the power of the court at that time to vacate the judgment on a mere motion. Mason v. Pearson, 118 Mass. 61. Blanchard v. Ferdinand, 132 Mass. 389. Wood v. Payea, 138 Mass. 61. Pierce v. Lamper, 141 Mass. 20. Barnes v. Smith, 104 Mass. 363. Mortland v. Little, 137 Mass. 339. See also Dudley v. Keith, 153 Mass. 104. We need not consider whether it might have been done on a formal petition, under the Pub. Sts. c. 187, § 17, (Pierce v. Lamper, ubi supra,) or on a writ of review. Pub. Sts. c. 187, §§ 22, 25, 30, 35.

The judgment for three hundred dollars was properly entered, and the plaintiff in error has no ground of complaint on that score. Jarvis v. Blanchard, 6 Mass. 4. Storer v. White, 7 Mass. 448. Fairfield v. Burt, 11 Pick. 244. That judgment therefore will stand, and the judgment subsequently entered must be reversed. Judgment reversed.