Hurnanen v. Gardner Automobile Co.

Rugg, C. J. The only question presented by this report is whether the Superior Court judge had power to remove a default and permit the case to be tried on its merits. The action is in tort for injuries alleged to have-been sustained through the negligence of the defendant in operating an automobile. Service of the writ was made duly on the defendant. The defendant did not appear in response to the summons and later was defaulted. A jury was impanelled and by it the damages sustained by the plaintiff were assessed. Thereafter and before judgment, a motion was filed in behalf of the defendant, alleging that the default had been entered against it through mistake and misunderstanding in failing to file an appearance, and that there was a complete defence to the plaintiff’s cause of action. This motion was supported by affidavits tending to show that the defendant’s property had been attached on the writ, which had been dissolved by the giving of a bond under the advice of the defendant’s attorneys; that the defendant’s- president supposed the information given to the defendant’s attorneys in connection with the execution of such bond was enough to insure a defence being made, and he failed to place the summons in their hands and did not remember that he had been asked for it; that the member of the firm of attorneys consulted by the defendant in respect to the bond asked that the summons be sent to his office for attention according to the custom of his office by the clerk having in charge the matter of appearances, and he supposed that this had been done (although in fact it had not been done) and thought that appearance had been made and answer [191] filed until the day after the assessment of the plaintiff’s damages by the jury, and that appearances were entered by his firm in other cases returnable at the same time as the plaintiff’s action. There were other affidavits tending to show that the defendant has a substantial defence to the plaintiff’s cause of action. The plaintiff filed no counter affidavits. After a hearing, the judge allowed the motion of the defendant to take off the default, set aside the assessment of damages, and granted leave upon terms to the defendant to enter an appearance and to plead to the merits. It is provided by R. L. c. 173, § 54, that courts “may, for good cause shown, extend the time for entering an appearance, and may, in their discretion and upon terms, take off a default at any time before judgment.” These words are plain and explicit. They confer upon courts in broad terms complete power to remove a default whenever in the exercise of judicial discretion a default ought to be removed. The affidavits set forth facts sufficient to show that the failure of the defendant to appear was due to accident and mistake. Since according to the other affidavits the defendant had a defence to the plaintiff’s cause of action, manifest justice requires that the case should be tried on its merits and that the plaintiff should not recover a judgment against the defendant based wholly upon a default and a one-sided trial in the absence of the defendant. Whether a default shall be removed or not rests, according to the express words of the statute, upon sound judicial discretion. In ordinary cases there can be no review of the action of a court founded upon the exercise of discretion. Edwards v. Willey, 218 Mass. 363, 365, and cases cited. Massachusetts Bonding & Ins. Co. v. Peloquin, ante, 30. The removal of the default in the case at bar appears upon the face of the record to have been necessary in order to prevent the entry of judgment against one who had had no opportunity to be heard. The facts set forth in the affidavits showed a sufficiently “good cause” to warrant the court in extending to fifteen days after the entry of the order the time within which an appearance might be entered by the defendant. The power to remove a default at any time before judgment involves of necessity the power to set aside all proceedings subsequent to the default, including an assessment of damages by a [192] jury. The court was fully warranted in setting aside the assessment of damages. The motion to remove the default and set aside the assessment of damages was in no proper sense a motion for a new trial. There had been no contested trial. The proceedings as to motions for a new trial and the setting aside of a verdict, as those terms are used in statutes and rules of court, have no relation to a motion like the present, which is simply to remove a default with such incidental relief as is essential in order to give effect to the main remedy. In accordance with the terms of the report, the order removing default and setting aside the assessment of damages is affirmed and the case is remanded to the Superior Court for further proceedings according to law. So ordered.