Conole v. Johnson

Mass. Dist. Ct., App. Div.

Conole v. Johnson

2 Mass. App. Div. 592

CourtMassachusetts District Court, Appellate Division

DecidedOctober 15, 1937

StatusPublished

This text of 2 Mass. App. Div. 592 (Conole v. Johnson) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Conole v. Johnson, 2 Mass. App. Div. 592 (Mass. Ct. App. 1937).

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Opinion

Jones, P. J.

This is plaintiff’s petition to establish a report under Rule XXX of the Rules of the District Court— [593]*5931932 Edition. It may be noted that the petition is that of “counsel . . . for the plaintiff.” The supporting affidavit is that the statements in the petition “are true to the best of his knowledge and belief.”

The petition cannot be granted because it fails to comply with Bule XXX of the Buies of the District Court. It is not verified by an affidavit, as required by the rule. Proceedings for the establishment of a report are analogous to those for establishment of exceptions, and are to be regarded as strictissimi juris. Bishop, Pet’r, 208 Mass. 405. It is to be noted that the petition fails to conform to Buie XXX aforesaid, which requires such a petition to be “verified by affidavit, setting forth in full his (the petitioner’s) claim for such report and all facts material thereto.” The oath in this case supporting the petition is that the facts stated “are true to the best of his knowledge and belief.” This does not conform to the rule regarding verification, which must be strictly complied with. Clemens Electrical Manufacturing Co. v. Walton, 168 Mass. 304. The affidavit in this case fails to comply with this ruling, in that it verifies the allegations in the petition as true to the best of petitioner’s knowledge and belief. Such a petition should be verified as true. Hadley v. Watson, 143 Mass. 27. Dealtry v. Selectmen of Watertown, 279 Mass. 22-27. Tolman v. Crowell, 288 Mass. 397-400-401.

The rule above referred to also forbids the establishment of a report unless all the requirements relating thereto are complied with.

We have not taken into consideration the fact that the petitioner is not the plaintiff, but is the plaintiff’s attorney, but have treated it as if the petition were in the name of the plaintiff.

An order will be entered dismissing the petition.

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Jones, P. J.

This is plaintiff’s petition to establish a report under Rule XXX of the Rules of the District Court— [593]*5931932 Edition. It may be noted that the petition is that of “counsel . . . for the plaintiff.” The supporting affidavit is that the statements in the petition “are true to the best of his knowledge and belief.”

The petition cannot be granted because it fails to comply with Bule XXX of the Buies of the District Court. It is not verified by an affidavit, as required by the rule. Proceedings for the establishment of a report are analogous to those for establishment of exceptions, and are to be regarded as strictissimi juris. Bishop, Pet’r, 208 Mass. 405. It is to be noted that the petition fails to conform to Buie XXX aforesaid, which requires such a petition to be “verified by affidavit, setting forth in full his (the petitioner’s) claim for such report and all facts material thereto.” The oath in this case supporting the petition is that the facts stated “are true to the best of his knowledge and belief.” This does not conform to the rule regarding verification, which must be strictly complied with. Clemens Electrical Manufacturing Co. v. Walton, 168 Mass. 304. The affidavit in this case fails to comply with this ruling, in that it verifies the allegations in the petition as true to the best of petitioner’s knowledge and belief. Such a petition should be verified as true. Hadley v. Watson, 143 Mass. 27. Dealtry v. Selectmen of Watertown, 279 Mass. 22-27. Tolman v. Crowell, 288 Mass. 397-400-401.

The rule above referred to also forbids the establishment of a report unless all the requirements relating thereto are complied with.

We have not taken into consideration the fact that the petitioner is not the plaintiff, but is the plaintiff’s attorney, but have treated it as if the petition were in the name of the plaintiff.

An order will be entered dismissing the petition.

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2 Mass. App. Div. 592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conole-v-johnson-massdistctapp-1937.

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