Pleading, Civil, Motion to vacate judgment, Demurrer. Judgment, Motion to vacate.
Where one of several grounds of demurrer in the Superior Court to a pleading entitled "Petition for Writ of Review" was that "the form of the petition is not in accordance with the provisions of the General Laws, and that it states that it is a petition for a writ of review, and is in the form of a motion to vacate a judgment," and an examination of the pleading shows that it was in substance and effect a motion to vacate judgment under G.L.c. 250, § 15, and it was so treated by the judge in the Superior Court, this court, on an appeal from an order overruling the demurrer held that, although the pleading was called by a wrong name and was otherwise informal, it ought to be considered on its merits for what it was.
A motion to vacate a judgment ought to contain an averment that an execution issued upon the judgment had not been satisfied in whole or in part, but the omission of such an allegation is not fatal, where it appears from the motion that the judgment sought to be vacated was for the defendant in an action of tort and that the grounds of the motion were lack of knowledge by the plaintiff or his counsel, until the presentation of the motion to vacate, of the pendency of a motion to dismiss the action, failure through a misunderstanding to attend a hearing thereon, and lack of knowledge that the action had been dismissed.
There is no statutory requirement that a motion to vacate a judgment should be supported by an affidavit of the moving party; it is proper that supporting affidavits be filed by those, either parties, counsel or others, who know material facts.
Striking a case from the docket is a judgment of dismissal and final, and the action then is ripe for a motion to vacate the judgment.
A genuine and honest misunderstanding as to the time of hearing of a motion to dismiss an action at law, by reason of which the action is stricken from the docket, cannot be said as a matter of law not to be sufficient ground to warrant the exercise of sound judicial discretion in allowing a motion to vacate the judgment.
RUGG, C.J.
This proceeding is entitled "Petition for Writ of Review." In substance and effect it is a motion to vacate judgment under G. L. c. 250, § 15. It was so treated by the judge of the Superior Court. Although called by a wrong name and otherwise informal, it ought to be considered on its merits for what it is. Davis v. National Life Ins. Co. 187 Mass. 468. See Maker v. Bouthier, 242 Mass. 20. There is nothing at variance with this in Clarke v. Backall, 171 Mass. 292. There ought to have been an averment in the motion that the execution had not been satisfied in whole or in part, but its omission was not fatal to the proceeding.
There is no requirement of statute that such a petition be supported by affidavits. It is proper that supporting affidavits be filed by those knowing material facts, either parties, counsel or others. See Willard v. Ward, 3 Mass. 23.
Striking a case from the docket is a judgment of dismissal and final. Karrick v. Wetmore, 210 Mass. 578. Shour v. Henin, 240 Mass. 240. The case was ripe for a motion to vacate judgment.
A genuine and honest misunderstanding as to the time of hearing on a motion to dismiss, out of which the striking from the docket arose, may be a sufficient ground for vacating a judgment. That may be described appropriately as accident or mistake. It cannot be said as matter of law that the facts set forth in the record could not be found to be sufficient to warrant the exercise of sound judicial discretion to vacate the judgment. Rollins v. Bay View Auto Parts Co. 239 Mass. 414, 423, 424. Ryan v. Hickey, 240 Mass. 46.
Order overruling demurrer affirmed.