Foley v. Talbot

39 N.E. 40, 162 Mass. 462, 1894 Mass. LEXIS 107

• Court: Massachusetts Supreme Judicial Court
• Decided: December 3, 1894
• Status: Published

Opinion

Allen, J.

By Rule 49 of the Superior Court, “ All exceptions shall be reduced to writing and filed with the clerk, and notice thereof given to the adverse party,” within a specified time. The statute also is to the same effect. Pub. Sts, c. 153, § 8. By Rule 31, “ All notices required by or given in pursuance of these rules shall be in writing, and may be proved by an affidavit of the party or his attorney to a copy thereof, and setting forth that the same was delivered personally to the adverse party or his attorney, or deposited in the post office directed to him, postage prepaid.” Under this rule, a notice left at the office of the attorney in his absence is not duly served unless it actually reaches him. Leaving it in his office is not an equivalent for sending it by mail. The rule shows in explicit terms how notices are to be served, and one who departs from the method there pointed out must take the risk of being able to prove that the-notice actually came to hand. In the present case, it did not appear whether the notice was left on the attorney’s desk, or elsewhere in the office; and the attorney deposed that he never received it. The judge, therefore, might properly refuse to rule as requested, and find that the notice was not duly served.

Exceptions overruled.