Laino v. Dumais

This is a petition under G. L. c. 250, § 15, to vacate a District Court judgment in the amount of $745.25 with costs entered in favor of the respondent in an action of contract. The petition was denied in the District Court when it was marked for hearing and neither the petitioner nor his counsel’ appeared. On appeal to the Superior Court the petition was denied and the petitioner excepted. Denial of a motion in the original action for a new trial on grounds similar to those now advanced by the petitioner was upheld by the Appellate Division and by this court. Dumais v. Laino, 352 Mass. 786. The granting of a petition to vacate a judgment rests largely although not exclusively in the sound discretion of the judge. Alpert v. Mercury Publishing Co. 272 Mass. 43, 45. The petitioner bears a heavy burden in seeking to have a judgment set aside. Alpert v. Mercury Publishing Co., supra, 45. Russell v. Foley, 278 Mass. 145, 148. In some circumstances we have held that the petition must be denied as matter of law. Mede v. Colbert, 342 Mass. 166. The petitioner claims error here in that the Superior Court judge did not permit him to present evidence in support of the petition. However, the petitioner was permitted to make a detailed opening statement as to the expected evidence. We need not decide whether upon the record before him the judge was required to deny the petition. The petitioner has failed to prove an abuse of discretion in the judge’s ruling. Exceptions overruled.