Donnell v. Hodsdon

Emery, C. J. A petition for a review of a civil action is a statutory remedy to be granted only “ in the special cases ” named in the statute. II. S., ch. 91, sec. 1. The only “special case” invoked in this petition is that stated in clause No. Nil of.the statute, which clause provides that “a review may be granted in any case where it appears that through fraud, accident, mistake or misfortune justice has not been done, and that a further hearing would be just and equitable.” At the hearing upon this petition the presiding Justice found as a fact that the petitioner’s attorney, who had appeared for her in the action sought to be reviewed, failed through negligence to notify her of the day set for the trial of the action, and hence she did not appear for trial and so was defaulted. The presiding Justice ruled that this negligence of her attorney “was such accident, mistake or misfortune on her part as would entitle her tó a review.” No other facts appear to have been shown as cause for a review, and hence the ruling was practically that nothing else was [422] necessary to be shown, as that fact was enough to entitle the petitioner to a review. We think the ruling was wrong. It ignored other statutory requisites to the granting of a review on this petition. Under clause VII upon which this petition is based, the petitioner is not entitled to a review unless he proves to the satisfaction of the court at nisi prius three propositions; (1) that justice has not been done; (2) that the consequent injustice was through fraud, accident, mistake or misfortune; and (3) that a further hearing would be just and equitable. If the presiding Justice is satisfied of all these and grants the petition or is not satisfied of some one of them and denies the petition, his decision is final and not subject to review upon exceptions. Where, however, as here, the presiding Justice rules in eSect that it is enough to show the negligent omission of the attorney to notify the client of the day set for trial, and that he, the presiding Justice, need not be satisfied of anything else, such ruling is subject to exception and for the reasons above stated is erroneous. It grants a review although there may not be any defense to the action, and although a further hearing would not be just nor equitable. It was declared in Stillman v. Donovan, 170 Mass. 360, that such negligence was not sufficient cause for a review. Exceptions sustained.