Shour v. Henin

133 N.E. 561, 240 Mass. 240, 1922 Mass. LEXIS 752

• Court: Massachusetts Supreme Judicial Court
• Decided: January 14, 1922
• Status: Published

Opinion

Rugg, C. J.

This is an action of contract. The writ is dated May 5, 1913. In March, 1914, the case was referred to an auditor. Hearings were held before him, some of them within two years prior to October 2, 1916. On that date the case was marked on the Superior Court docket “dismissed, no action.” On May 11, 1917, petition was filed to vacate the judgment on the ground that the order of dismissal was erroneously entered because hearings had been held before the auditor within two years. There was a hearing upon this petition on its merits, where it appeared that counsel for the defendant was present and told the presiding judge that it was true that hearings had been held by the auditor within two years previous to October 2, 1916. The petition to vacate judgment was allowed. No bond was filed. In January,' 1920, the rule to the auditor was discharged. In April, 1920, a motion by the plaintiff for trial by jury was allowed. A trial by jury was had and verdict rendered for the plaintiff on March 11, 1921. Three days later the defendant filed a motion to set the verdict aside on the ground that the judgment of October 2, 1916, had never been vacated, because no bond had been filed, and hence that all subsequent proceedings were void. Up to the filing of this motion on March 14, 1921, the record fails to disclose any objection on the part of the defendant to the proceedings.

The dismissal of the action on October 2, 1916, was a final judgment in the case. It could be vacated or set aside only on some proceeding authorized by law. Karrick v. Wetmore, 210 Mass. 578.

The mode provided by law for setting aside a judgment is found in R. L. c. 193, §§ 14-20, G. L. c. 250, §§ 14-20.

The petition in the case at bar was seasonably filed. It was sufficient in substance to warrant the favorable option of the court, which is largely discretionary. Marsch v. Southern New England Railroad, 235 Mass. 304, 305. No bond was filed as required by § 17. Both parties proceeded to further steps in the litigation as if the bond had been filed. If objection had seasonably been taken to failure to file the bond, or to the entry of the order of vacation of judgment before the filing of the bond, it would have been necessary to reverse that action of the court and remand the case to the Superior Court for further proceedings. Davis v. National Life Ins. Co. 187 Mass. 468. It then would have been within the jurisdiction of that court to approve a proper bond and to vacate the judgment. The hearing would still be open for that end. There is no limit of time set in § 17 for the filing of the bond provided the petition to vacate the judgment is seasonably filed. Hunt v. Simester, 223 Mass. 489. Doubtless, where the circumstances warrant, as seemingly they do in the case at bar, it would be within the power of the court to approve the bond nunc pro tune as of a time prior to the proceedings taken by the parties without objection subsequent to the entry of the order vacating the judgment. Perkins v. Perkins, 225 Mass. 392.

There is no occasion for such circuity of procedure. The case now has advanced to a verdict and apparently will be ripe for judgment immediately upon the decision of the point here reported. The verdict is in favor of the plaintiff and hence the bond will be of no practical value to the defendant. It does not appear that he is in a position to take any benefit from the bond. The defendant by his conduct in going forward with the trial has so far as is possible for him waived the right to complain of the failure to file the bond. Wheeler & Wilson Manuf. Co. v. Burlingham, 137 Mass. 581. Bauer v. International Waste Co. 201 Mass. 197. See Burnham v. Haskell, 213 Mass. 386. The conduct of the defendant in going forward to the trial by jury without objection has gone far toward estopping himself from raising the question now: Boston & Albany Railroad v. Reardon, 226 Mass. 286, 291. These considerations would be of no avail if the jurisdiction of the court were affected. Santom v. Ballard, 133 Mass. 464. The Superior Court is a court of general jurisdiction. If the motion were granted and all intervening proceedings set aside, that court still would have jurisdiction of the petition to vacate the judgment of October 2, 1916. It would be unfortunate to set aside a verdict in a case which has been long pending unless substantial justice required it. It is not required by the circumstances of the present case. No error is disclosed by the present report concerning the trial of the case upon its merits. The motion to set aside the verdict should be denied. G. L. c. 231, § 132.

The motion has been treated as raising the broad question which has been discussed. Construing it narrowly, as a motion to set aside a verdict, no matter can thus be raised as of right which might have been presented at the trial. Ryan v. Hickey, ante, 46, and cases there collected. Hallett v. Jordan Marsh Co. ante, 110. Manifestly this question might have been raised at the trial. We have preferred to consider the case in its wider aspects, including that of the jurisdiction of the court.

Motion denied.