Purcell v. Boston, Halifax, & Prince Edward Island Steamship Line

23 N.E. 834, 151 Mass. 158, 1890 Mass. LEXIS 169

• Court: Massachusetts Supreme Judicial Court
• Decided: February 26, 1890
• Status: Published

Opinion

C. Allen, J.

The defendant’s exceptions cannot be entertained and considered, because the defendant failed to give to the plaintiff the notice required by the Pub. Sts. c. 153, § 8. It is there provided that exceptions “ shall be filed with the clerk and notice thereof given to the adverse party . . . within three days after the verdict. . . . For good cause shown, a further time, not exceeding five days unless by consent of the adverse party, may be allowed by the court.” An extension of time was given, which expired on June 13, on which day the defendant filed exceptions, but gave no notice to the plaintiff until June 24. There is no room for the suggestion of the defendant, that, when a further time is allowed, no notice at all need be given to the adverse party. The plaintiff has never waived the omission to give seasonable notice to him, and he raised the objection before the allowance of the exceptions. The giving of the notice seasonably to the adverse party is made essential by the statute, and the plaintiff had a right to insist upon his objection, and under this state of things the court could not properly allow the defendant’s exceptions. Conway v. Callahan, 121 Mass. 165. Spofford v. Loveland, 130 Mass. C.

The usual and sufficient method of presenting a question of this kind is by a certificate of the facts, made by the presiding justice upon the bill of exceptions. Conway v. Callahan, 121 Mass. 165. Browne v. Hale, 127 Mass. 158, 161. But since it was a question of law whether under the circumstances the court had a right to allow the exceptions, the plaintiff might also properly present that question by a separate bill of exceptions, as was done in Cowley v. McLaughlin, 141 Mass. 181, 183. Pub. Sts. c. 153, § 8.

Plaintiff's exceptions sustained.

Defendant's exceptions dismissed.