Parsons v. A. C. Titus Co.

2 Mass. App. Div. 387

• Court: Massachusetts District Court, Appellate Division
• Decided: August 12, 1937
• Status: Published

Opinion

Jones, P. J.

This ease is before us on defendant’s petition to establish a report under Rule XXX of the rules of the District Court 1932 Ed., and on plaintiff’s motion to dismiss the said petition filed by the defendant. The reasons assigned for the dismissal of the report are,—

1. The petition does not comply with Rule XXX of the Rules of the District Court of the Commonwealth of Massachusetts in that it does not set forth in full the defendant’s claim for a report and all of the facts material thereto.

2. The petition does not comply with Rule XXX of the Rules of the District Court of the Commonwealth of Massachusetts in that the petition is not verified by an affidavit as required by the rule.

3. The petitioner has failed to comply with Rule XXX of the Rules of the District Court of the Commonwealth of Massachusetts in that the petitioner has failed to send to the plaintiff a copy of the petition in the form required by the rule.

The second ground assigned for the dismissal of the petition is the only ground necessary to be noted by the court as a reason for the granting of the same.

Proceedings for the establishment of a report, being analogous to proceedings for the establishment of exceptions, must be regarded as strictissimi juris. Bishop, Petitioner, 208 Mass. 405.

Rule XXX aforesaid requires that such petition shall be

“verified by affidavit setting forth in full his (the petitioner’s) claim for such report and all of the facts material thereto. ”

The defendant’s oath supporting the petition in this case is that the facts stated in the affidavit are true “to the best of her knowledge and belief.”'

It has been held many times that the rule regarding verification must be strictly complied with. Clemens Electrical Manufacturing Co. v. Walton, 168 Mass. 304.

The affidavit in this case fails to comply with this rule. It is not sufficient that it be verified as true to the best of petitioner’s knowledge and belief, it must be verified as true. Hadley v. Watson, 143 Mass. 27.

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

It is unnecessary to take up the further grounds set forth by the plaintiff in his motion to dismiss.

Consequently the defendant’s petition is dismissed.