Hall v. Maloney

Rugo, C.J. This is an appeal by the plaintiff from the denial of a motion that the clerk be ordered to amend the record. The motion was heard upon an agreed statement of facts. From this it appears that the case was entered in the Superior Court in September, 1918, and that in April, 1920, after a hearing, there was a finding for the plaintiff for a specified sum. Exception was taken by the defendant to the denial of requests for rulings. Exceptions were duly filed and finally allowed on November 4, 1920, as of October 28, 1920. The case was then pending without action by either party until September 4, 19?3, when the attorneys for both parties were notified by the clerk that the “case would be dismissed under Rule on Oct. 1, 1923.” Thereafter nothing was done by the attorney for either party up to and including October 1, 1923, when the case was dismissed and an entry made by the clerk on the docket of this tenor: “1923 Oct. 1 Dismissed under [230] rule of Court No. 62 and judgment entered.” No judge of the Superior Court was present or holding court in Barnstable County at the time of this dismissal. The rule of the Superior Court referred to in this docket entry in force at that time was entitled “Dismissal of Old Actions,” and so far as material was in these words: “On the Tuesday after the first Monday of September in each year the clerk in each county, except Suffolk, shall send to counsel in every case which has remained upon the docket without action, other than placing on the trial list or marking for trial, for two years preceding said date, notice that such case will be dismissed on the first Monday of October following, unless a motion that such case be allowed to remain on the docket alleging cause therefor with affidavit in support thereof shall be filed. If no such motion is filed before said first Monday of October, the case without further notice or hearing shall thereupon be dismissed, and judgment entered forthwith.” Thereafter until on or about July 7, 1927, no further action was taken in the case. On or about that date the clerk, after consulting with the plaintiff but with no motion or petition pending and without notice to the defendant, changed the docket entry of October 1, 1923, already quoted, by adding the following words “for plaintiff for $722.67 and $36.48 costs of suit,” and affixing also her initials. Later on the same date but without notice to the defendant the clerk issued to the plaintiff a certificate of judgment on said amended record. The plaintiff brought an action on this judgment, the summons therein being the first notice to the defendant of the change in the docket made by the clerk and of the issuance of such certificate of judgment. On' July 20, 1927, the clerk again changed the record by striking out all the words of the first amendment to the record, namely, “for the plaintiff for $722.67 and $36.48 costs of suit,” and made the following entry: “1927 July 20 A mistake having been made in my final entry of judgment, I have this day struck from the docket entry the following: Tor plaintiff for $722.67 and $36.48 costs of suit’, and notified Walter Welsh Counsel for plaintiff [231] & C. S. Morrill, Counsel for defendant, of said change. (R. C. S.).” The present motion by the plaintiff is in effect that the words added to the docket on or about July 7, 1927, and thereafter erased, be restored to the record, and that the entry under July 20, 1927, and also the entry of dismissal of October 1, 1923, under the rule be expunged from the record. The validity of Common Law Rule 62 of the Superior Court (1923) is settled. Doubtless hundreds of cases have been dismissed in accordance therewith. It is not necessary under the rule that a judge be present at the time the dismissal is actually made. The making of the appropriate docket entry becomes a duty of the clerk when the time mentioned in the order pursuant to the rule has arrived and nothing has been done to keep the case alive. Donovan v. Danielson, 263 Mass. 419, 421. The case was fully within the terms of said Rule 62 and of the order passed pursuant thereto. The dismissal was a final judgment in the case. Karrick v. Wetmore, 210 Mass. 578. It was equivalent to a nonsuit. Farnum v. Brady, ante, 53, and cases there collected. The power of a court to correct clerical errors in its records is ample, but in the case at bar there was no clerical error. The original entry made by the clerk on the docket under date of October 1, 1923, was right. It conformed to the facts. The addition thereto made on or about July 7, 1927, was unauthorized, incorrect and not warranted. The correction of that mistake under date of July 20, 1927, was the right thing for the clerk to do. If seasonable steps had been taken the law afforded ample relief to the plaintiff. He might have moved that the defendant’s exceptions be dismissed under G. L. c. 231, § 135. Griffin v. Griffin, 222 Mass. 218. Silverstein v. Daniel Russell Boiler Works, Inc. 254 Mass. 137. He might have filed proper affidavits under Rule 62 and thus have prevented the dismissal of the case. Order denying motion affirmed.