Eaton v. Inhabitants of Framingham

60 Mass. 245, 6 Allen 245

Opinion

Dewey, J.

This petition for a jury was filed under the provisions of the Rev. Sts. c. 24, § 76, which give the right to such jury, if applied for within one year after the laying out, alteration, or discontinuance of a town way. Supposing the filing of the petition with the clerk of the county commissioners to have taken place within one year, the further question is, whether such filing must not be at some regular term of the commissioners, and when the board are in session. It seems to us, that the application prescribed by the statute is an application to a board competent to act in the matter, and that it was intended that the initiatory proceedings should commence before such board, within the term of one year.

The filing of a petition with the clerk in vacation makes no effectual movement in the matter. No authority is given to the clerk to order notice, or issue any process in furtherance of the objects of the petition. Practically, therefore, the effect of allowing a petition for a jury to be filed in vacation would be, in many cases, a postponement of all proceedings much beyond a year. Suppose a meeting of the county commissioners to be so holden, that a term expires eleven months after the laying out of the road, and the next term is six months subsequent. Here the filing of the petition would virtually be seventeen months after the location of the road. The court are of opinion, that it was the purpose of the statute, that the petition should be filed at some regular term of the commissioners, holden at the time appointed by law, or continued by adjournment; and that such petition must be thus filed witfyin the term of one year. In other cases, it is directly enacted, that a petition may be presented to the court, or filed in the clerk’s office, as in the case of a petition for leave to enter an appeal, not entered by mistake. Rev. Sts. c. 81, § 36. So in cases of petition for partition, c. 103, § 7 ; and in libels for divorce from the bonds of matrimony, c. 76, § 13.

In the absence of any such provision in the present case, we do not feel authorized to give effect to the filing of this petition in the clerk’s office in vacation, there being no regular meeting of the commissioners, at which it could have been received and acted upon within the year. The ruling of the court of common pleas, accepting the verdict of the jury, must be reversed, and all further proceedings stayed.