FRANK OLIVER, JUNIOR, vs. MANUEL T. BRAZIL & others.
Judgment, Vacation. Practice, Civil, Petition to vacate judgment.
No error and no abuse of discretion was shown in the dismissal of a petition to vacate a judgment, where the judge who beard the petition found that the petitioner was present at the trial of the original action, was represented by counsel and had ample opportunity to present the evidence relied upon as the basis of the petition to vacate; and that substantial justice was done in that trial.
PETITION, filed in the Third District Court of Bristol on February 11, 1933, seeking vacation of a judgment of the respondents against the petitioner in the sum of $1,059.74 damages and $12.66 costs.
On appeal from the District Court, the petition was heard in the Superior Court by Hanify, J. Material facts found by him are stated in the opinion. The judge entered the following order: "In the exercise of the sound judicial
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discretion vested in me, I order that the petition be and is hereby dismissed." The petitioner alleged exceptions.
The case was submitted on briefs
S. Rosenberg, for the petitioner.
G. B. Goodman, for the respondents.
BY THE COURT. This is a petition to vacate a judgment rendered in a district court in favor of the respondents against the petitioner. In the Superior Court the trial judge made findings to the effect that at the trial of the original action the petitioner was present, was represented by counsel and had ample opportunity to present the evidence relied upon at the hearing on the present petition, and concluded in these words: "I am satisfied from the evidence presented at the hearing before me that substantial justice was done in the trial of the original action and that the petitioner had his day in court." The requests of the petitioner so far as they were rulings of law were given. Requests based upon facts were denied because such facts were not found. The evidence need not be reviewed. The essential findings of fact were against the petitioner. In this there was no error of law. Upon this record the petition was addressed to the sound judicial discretion of the trial judge. There was no abuse of discretion in denying it. Rollins v. Bay View Auto Parts Co. 239 Mass. 414, 423, 424. Ryan v. Hickey, 240 Mass. 46. Beserosky v. Mason, 269 Mass. 325. Hopkinton v. B. F. Sturtevant Co. 285 Mass. 272, 277.
Exceptions overruled.