O'Flanagan v. Smith

Mass. Dist. Ct., App. Div.

O'Flanagan v. Smith

9 Mass. App. Div. 187

CourtMassachusetts District Court, Appellate Division

DecidedJune 1, 1944

StatusPublished

This text of 9 Mass. App. Div. 187 (O'Flanagan v. Smith) 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

O'Flanagan v. Smith, 9 Mass. App. Div. 187 (Mass. Ct. App. 1944).

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Opinion

Keniston, G. J.

This is a petition to establish a report. The petition is verified by affidavit, signed and sworn to, in the following form: “I, Frederic Gilbert Bauer, attorney for the above-named, make oath that I have read the foregoing petition and am acquainted with the contents thereof and that the facts therein stated are true except in so far as stated to be upon belief and that as to such facts I believe them to be true. ’ ’ This affidavit does not comply with the provisions of rule 30 of this court, that the petition be “verified by affidavit.” Dubois v. Boston & Maine Railroad, Supreme Judicial Court, Rescript January 11, 1944 (No opinion). Hadley v. Watson, 143 Mass. 27. That portion of the affidavit which is qualified in the following words “except in so far as stated to be upon belief and that as to such facts I believe them to be true” refers to the second paragraph of page 11 of the petition which reads as follows: “The plaintiff verily believes and therefor alleges that the evidence set forth in paragraphs 13, 14 and 15 of the draft report was all the evidence material to the status of the plaintiff at the time he was bitten and all the evidence on any issue material to the plaintiff’s 17th request [188]*188for rulings and to the claim of report on said 17th request set forth in paragraphs 1 and 2 of the claim of report.” Paragraphs 13, 14 and 15 of the draft report are the only paragraphs in the draft report that contain any of the evidence introduced at the trial and on the basis of which the petitioner seeks to establish his report.

If every part of a petition to establish a report should be verified by affidavit, Fuller, Petitioner, 219 Mass. 209, then certainly the most essential part of the report -should be so verified.

“The truth of all facts which the petitioner thinks sufficiently material to be in the petition must be supported by oath. . . . Justice does not demand an investigation of the subject unless some one is willing to assume the burden of making oath to the truth of all the facts on which action is sought.” Fuller, Petitioner, supra at pages 210 and 211.

It seems unnecessary to consider whether there was any error in disallowing the defendant’s claim of report.

The petition to establish the report is dismissed.

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Keniston, G. J.

This is a petition to establish a report. The petition is verified by affidavit, signed and sworn to, in the following form: “I, Frederic Gilbert Bauer, attorney for the above-named, make oath that I have read the foregoing petition and am acquainted with the contents thereof and that the facts therein stated are true except in so far as stated to be upon belief and that as to such facts I believe them to be true. ’ ’ This affidavit does not comply with the provisions of rule 30 of this court, that the petition be “verified by affidavit.” Dubois v. Boston & Maine Railroad, Supreme Judicial Court, Rescript January 11, 1944 (No opinion). Hadley v. Watson, 143 Mass. 27. That portion of the affidavit which is qualified in the following words “except in so far as stated to be upon belief and that as to such facts I believe them to be true” refers to the second paragraph of page 11 of the petition which reads as follows: “The plaintiff verily believes and therefor alleges that the evidence set forth in paragraphs 13, 14 and 15 of the draft report was all the evidence material to the status of the plaintiff at the time he was bitten and all the evidence on any issue material to the plaintiff’s 17th request [188]*188for rulings and to the claim of report on said 17th request set forth in paragraphs 1 and 2 of the claim of report.” Paragraphs 13, 14 and 15 of the draft report are the only paragraphs in the draft report that contain any of the evidence introduced at the trial and on the basis of which the petitioner seeks to establish his report.

If every part of a petition to establish a report should be verified by affidavit, Fuller, Petitioner, 219 Mass. 209, then certainly the most essential part of the report -should be so verified.

“The truth of all facts which the petitioner thinks sufficiently material to be in the petition must be supported by oath. . . . Justice does not demand an investigation of the subject unless some one is willing to assume the burden of making oath to the truth of all the facts on which action is sought.” Fuller, Petitioner, supra at pages 210 and 211.

It seems unnecessary to consider whether there was any error in disallowing the defendant’s claim of report.

The petition to establish the report is dismissed.

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9 Mass. App. Div. 187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oflanagan-v-smith-massdistctapp-1944.

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