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  • PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
  • TITLE II ACTIONS AND PROCEEDINGS THEREIN
  • CHAPTER 228 SURVIVAL OF ACTIONS AND DEATH AND DISABILITIES OF PARTIES
  • Section 5A Commencement of action for order to executor or administrator to appear and defend notwithstanding failure to take out citation within time limit of preceding section; further orders for determination on merits

Section 5A. The plaintiff in a personal action which is not governed by the Massachusetts Rules of Civil Procedure or the District-Municipal Courts Rules of Civil Procedure the cause of which survives and who had a right to take out a citation against the executor or administrator of a sole defendant but who did not do so within the time limited in the preceding section may commence a civil action in the supreme judicial or superior court for an order to such executor or administrator to appear in that action and defend the same. The court shall grant such relief if it finds that justice and equity so require and that the plaintiff is not chargeable with excusable neglect.

To effectuate such order the supreme judicial or superior court may further order that any finding, order, judgment or other act therein entered or done, which otherwise would prevent the prosecution of the cause to determination on its merits, be vacated, and upon the filing therein of a copy of the judgment ordering the vacation thereof such finding, order, judgment or other act shall stand vacated, and it may make further orders, all so that said action may proceed to final determination on its merits as though such executor or administrator had been cited in within the time limited by the preceding section.