Wood v. Superior Court

NOURSE, J.

This is an original proceeding in

certiorari

to review an order of the respondent court which reversed an order of the justice’s court made after final judgment, which denied a motion to set aside a default off one of the defendants. The proceeding in the justice’s court was an action for damages for personal injuries in which petitioner herein was plaintiff. The default of the defendant Campana was duly entered upon his failure to appear after service of

process

and judgment was thereafter duly entered against him. Notice of judgment was served upon him in accordance with the requirements of the code and more than ten days thereafter he served and filed his notice of motion to set aside the judgment as to him. This motion was denied and thereafter that defendant served and filed his notice of appeal from the default judgment and from the order of the court denying his motion to set aside his default. This notice of appeal recited that the appeal was taken on questions of both law and fact and it was not accompanied by any statement of the ease.

[553]

On the hearing of the appeal in the Superior Court the petitioner herein objected to a trial of the case

de novo

upon the following grounds: That the appeal from the judgment being one from a default judgment was necessarily an appeal upon questions of law alone; that the appeal from the order denying the motion to set aside the defendant’s default was not authorized by the code and the Superior Court was, therefore, without jurisdiction to hear it; that no statement of the case having been filed, the only question before the court was one of law upon the face of the judgment alone, and that accordingly the Superior Court was without jurisdiction to review any order made after the judgment. The Superior Court ■ apparently held with the petitioner on the first two objections urged, but overruling him as to the last, proceeded to hear the case

de novo

on the question of the discretion of the justice’s court in denying the motion to set aside the default. Evidence was taken on this subject the same as if the matter was one arising originally in the Superior Court and addressed to the discretion of that court. Following the hearing the Superior Court ruled that the justice of the peace had improperly exercised his discretion in refusing to set aside the default and that the order should have been granted. Judgment followed reversing the order of the justice of the peace and directing him to set aside the default.