Wrinn v. Sellers

252 Mass. 423

• Court: Massachusetts Supreme Judicial Court
• Decided: May 21, 1925
• Status: Published

Opinion

Rugg, C.J.

These are petitions filed on September 30, 1924, to vacate judgments entered on October 1, 1923, G. L. c. 250, §§ 14-20. The petitions rightly were entered as separate proceedings. Maker v. Bouthier, 242 Mass. 20. They set out grounds sufficient in law for vacating a judgment. Karrick v. Wetmore, 210 Mass. 578. Shour v. Henin, 240 Mass. 240. Order of notice was issued in proper form. On the return day attorneys entered a “special appearance” for the respondent in each case but filed no pleading whatever. Bond was filed and petition allowed on November 25, 1924. Each respondent appealed on December 15, 1924.

The respondents have argued that no sufficient service was made upon them. That question is not raised on this record. The special appearance alone was not enough. It made no mention of the ground for special appearance. Motion should have been filed to dismiss, or a plea to the jurisdiction, on account of insufficient service. Oliver Ditson Co. v. Testa, 216 Mass. 123. Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379, 380. See Cheshire National Bank v. Jaynes, 224 Mass. 14. The entry of a special appearance without more was under the circumstances the equivalent of a general appearance. Rollins v. Bay View Auto Parts Co. 239 Mass. 414, 423. While in general pleadings are not necessary in a proceeding like the present, Hastings v. Parker, 168 Mass. 445, when the respondent relies upon some special matter not going to the merits of the case, he must raise it by special pleading in order to have a standing as of right on such special matter.

No error is disclosed on this record of which advantage can be taken by appeal. Samuel v. Page-Storms Drop Forge Co. 243 Mass. 133. G. L. c. 231, § 96.

In each case the allowance of the petition is affirmed.

So ordered.