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RUGG, C. J. This is a petition to vacate a judgment entered in favor of the defendant on discontinuance by the plaintiff of his action of tort. It is a proceeding separate from the original action and is brought under G. L. c. 250, §§ 14-20. Wrinn v. Sellers, 252 Mass. 423, 425, 147 N.E. 899. That action was brought early in 1927, was entered in court, issue was joined without claim of trial by jury, the case was marked by the plaintiff for trial on the civil list without jury, was in order for hearing on December 6, 1927, and the defendant was prepared for trial, when the plaintiff, the present petitioner, made a motion that the case be transferred to the list of cases for trial by jury. That motion after hearing was denied. The plaintiff thereupon immediately filed a discontinuance of that action and brought a second action for the same cause, claiming therein a trial by jury. It is alleged in the present petition that the discontinuance was filed in order to enable your petitioner to bring a new suit for the same cause of action, and to claim a trial by jury. The second action was dismissed on a plea in abatement by order entered on May 1, 1928, exceptions in which have been overruled in the case just decided, Alpert v. Mercury Pub. Co., 265 Mass. -- , 172 N.E. 221. Pending the argument and decision on those exceptions, the present petition was brought. It is the third proceeding brought against the defendant by the plaintiff growing out of one cause of action.

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