Opinion
March 8, 1966.
The case was submitted on briefs.
Richard L. Hull Francis J. Vita for the petitioner.
Samuel Landa for the respondent Hancock Raceway, Inc.
This petition for leave to file a bill of review was properly dismissed in the Superior Court as "not based upon a ground for which a bill of review may be granted." If, as alleged, the assent of the petitioner's then counsel to the entry of a final decree dismissing his bill in equity in a suit in that court was without authority and contrary to instructions so that the petitioner had lost his day in court, that was a subject for consideration on a motion to set aside the decree, not for a bill of review. Hyde Park Sav. Bank v. Davankoskas, 298 Mass. 421, 423-425. See Winchester v. Winchester, 121 Mass. 127. Compare Doris v. State Realty Co. of Boston, Inc. 333 Mass. 425. We note from the original papers in the other suit that, after the entry of the final decree herein, the judge who had entered the final decree in that suit denied a motion to vacate that decree. There is no merit in the petitioner's contention that the final decree, because of ambiguity, shows error of law on the face of the record. The decree is in usual form; the assent of all parties to the dismissal at the conclusion of the petitioner's case was noted by the judge in his findings of fact and order for decree on the counterclaim and not, according to the original paper and its copy, before us as exhibit M, on the decree itself, as appears on a purported copy in the petitioner's brief. We think there was no basis for doubting that the decree was assented to; had there been, an appeal would have resolved the issue.
Decree affirmed.