Sylvester v. Hubley

Knowlton, J.

The power of the court to grant reviews in civil actions is expressed in very broad and comprehensive terms. When judgment is rendered, the Supreme Judicial Court or the Superior Court “ may, on petition, grant a review on such terms as it deems reasonable.” Pub. Sts. c. 187, §§ 22, 25. The question whether to grant a review, and if so on what terms, is addressed largely to the discretion of the judge. This discretion should be exercised in such a way as to promote an orderly and proper administration of justice, and not to encourage carelessness, ignorance, and laxity of practice in the conduct of cases in courts. Thayer v. Groddard, 19 Pick. 60 . Brewer v. Holmes, 1 Met. 288 . A decision granting or denying a petition for a writ of review cannot be set aside by the full court on exceptions, unless it violates some rule of law. Bowditch Ins. Co. v. Winslow, 3 Gray, 415 . Boston v. Robbins, 116 Mass. 313 .

In the present case, the only exception taken was to the refusal of the court to rule that the petition could not be maintained. The ground relied on at' the argument before us was, that the evidence does not warrant a finding of any misunderstanding, accident, or mistake, and that the petitioner is obliged to rest his application on the negligence or misconduct of his attorney. It is argued, as matter of law, that it is not in the power of thé court to grant a review where the judgment is rendered on : a default imputable to the negligence or misconduct of the petitioner’s attorney, and authorities are cited from other jurisdictions, under different statutes, some of which tend to support the respondent’s contention. Moody v. Dick, 4 Nev. & Man. 348. Breach v. Casterton, 7 Bing. 224. Gwilt v. Crawley, 8 Bing. 144. Barrow v. Jones, 1 J. J. Marsh. 470.

It is true, as a general rule, that a review should not be granted when the petitioner’s only cause of complaint grows out of the negligence or misconduct of his attorney, but he should be left to seek his remedy against him who is responsible for the wrong. Any other rule would tend to fraud and to laxity of practice, greatly to the detriment and delay of honest suitors. On the other hand, we are not prepared to lay down an absolute rule of law that in no case can a review be granted where the error complained of was due- to the negligence or misconduct of the petitioner’s attorney. A case might be supposed in which *309 such a rule would work great injustice. The statute gives the court power to prescribe such terms in granting the review as will reasonably protect the interests of the respondent. It was evidently the purpose of the Legislature to give the court much latitude in determining what justice requires in each particular case.

We cannot say that the court had not power to grant the review on the evidence now before us. We think the justice may have found that there was a misunderstanding between the petitioner and his attorney which was not wholly imputable to negligence on the part of either of them. The attorney might have forgotten the precise terms in which he demanded pay for his services, and might have thought that he had made it clear to the petitioner that he was not to be expected to attend further to the case, or to notify him, unless payment was made, when the petitioner supposed that he would at least notify him of the time of trial, and that there would then be an opportunity to make payment, and to defend the suit. We cannot revise either the findings of fact of the justice or his exercise of discretion, where no absolute rule of law is shown to have been violated.

Exceptions overruled.