360 Mass. 854

October 29, 1971

This is a petition under G. L. c. 250, Section 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.


360 Mass. 854

November 1, 1971

This is an action of contract for legal services. The judge has reported to us the question whether the action is barred by res judicata. We hold that it is. In a previous action against the same defendant for the same cause of action, demurrers were sustained first to the declaration and then to an amended declaration, in each instance with leave to amend. The plaintiff then moved that a second amended declaration be allowed. After that motion had been taken under advisement by one judge, the plaintiff moved to strike his declaration as amended and to substitute a new declaration, his fourth. The motion to substitute was allowed by a second judge, but he later vacated his order on motion by the defendant. Shortly thereafter the plaintiff discontinued his action and judgment was entered for the defendant. The plaintiff promptly brought the present action. "[A] judgment in . . . [an] earlier action following the sustaining of a demurrer is a bar to a second action for the same cause of action where the plaintiff had been granted leave to amend his earlier declaration and had neglected or refused to do so." Hacker v. Beck, 325 Mass. 594, 597. See Whitney v. Whitney, 299 Mass. 547, 551; Elfman v. Glaser, 313 Mass. 370, 374-378. In Martin v. Hunt, 352 Mass. 774, we held that the same rule applies when a pleading is dismissed as defective and an amendment is filed which fails to cure it. The result is no different where the plaintiff has discontinued while a motion to amend is pending. It follows, in the terms

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of the report, that the plaintiff's action is barred and that the defendant's motion for summary judgment should be allowed.