Opinion
May 5, 1970.
Edward Rudnitsky for the defendant.
Richard A. Goldstein ( Marcien Jenckes with him) for the plaintiff.
Following the filing of a bill in equity on March 11, 1965, by the plaintiff, alleging various acts of malfeasance by the defendant as a director of the plaintiff resulting in financial losses to the plaintiff, both the defendant and his counsel in writing assented to a "final decree assessing damages" in the sum of $750,000. The decree was entered on September 13, 1965. On January 2, 1969, the defendant filed a motion to set aside the final decree on the ground that it had been "obtained by fraud and deceit." The motion, after hearing, was denied on January 31, 1969. No appeal was taken or exception saved. On May 5, 1969, a motion of similar purport accompanied by two affidavits was filed, and after hearing by the same judge, was denied on May 16, 1969. The defendant appealed and also filed a bill of exceptions. Contrary to the plaintiff's contention, the remedial course pursued by the defendant, a motion to vacate, was, in the circumstances, proper. See Murphy v. Furcolo, 350 Mass. 772, and cases cited. The judge's action on the first motion, unchallenged by the defendant, was decisive of the issue raised, whether it be treated as one of fact or law or both. Barringer v. Northridge, 266 Mass. 315, 319-320. If the hearing by the same judge on the second motion (which was of the same tenor as the first, plus affidavits) be treated as an implied revocation of his first order, there was no error in the denial of the second motion to vacate. The judge was not required to believe the affidavits. Germain v. Raad, 297 Mass. 73, 75. Kahn v. Pacific Mills, 311 Mass. 588, 590. The denial of the motion imports finding of facts to support that action. Carilli v. Hersey, 300 Mass. 329, 331. There is no reason to doubt that the action was taken on the merits. Barringer v. Northridge, 266 Mass. 315, 319.
Exceptions overruled. Order denying motion to vacate final decree affirmed.