Opinion
February 27, 1980.
Present: McGuane, Larkin Mullaney, JJ.
Practice, Civil, Motion For Relief From Judgment; Judicial Discretion.
Report of court's denial of motion to remove default and vacate judgment. Action heard in the Springfield Division by Keady, J.
Michael G. West for the plaintiff.
David R. Kaplan for the defendant.
The issue raised by this appeal presents again the question of whether the denial of a motion to remove a default and vacate a judgment constitutes an abuse of discretion by the trial judge.
In Berube v. McKesson Wine Spirits Co., Mass. App. Ct. (1979) the Massachusetts Appeals Court stated that "[t]he exercise of discretion in this area involves the absence of arbitrary determination, capricious disposition, or whimsical thinking," or "the avoidance of idiosyncratic choice." Further, the same opinion states that a marked deference should be made to the decision reached by lower court judges.
Mass. App. Ct. Adv. Sh. (1979) 742.
The record in this case and arguments by the appellant fail to indicate whether or not there was a meritorious defense to the action. The trial judge was the one best suited to make the decision, and nowhere has the appellant shown any arbitrary, capricious or whimsical action by the trial judge.
We are of the opinion that the trial justice acted fairly and properly on the motions.
There being no showing of any kind of abuse of discretion on the part of the trial judge, this report is dismissed.