Thorndike

Massachusetts Supreme Judicial Court

Thorndike

244 Mass. 429

CourtMassachusetts Supreme Judicial Court

DecidedMarch 27, 1923

StatusPublished

Cited by13 cases

This text of 244 Mass. 429 (Thorndike) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Thorndike, 244 Mass. 429 (Mass. 1923).

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Opinion

Rugg, C.J.

This is a petition to establish exceptions. Motion to dismiss the petition has been made alleging various grounds.

1. The petition is sufficiently “verified by affidavit,” as required by Rule 6 of the full court rules. The signature of the petitioner, together with the jurat of an authorized magistrate that the petition has been subscribed and sworn to before him, has been held to be compliance with the rule. Rowse, petitioner, 195 Mass. 216, 218.

2. It is customary that the affidavit filed with the petition should contain verification of the fact that the petitioner before filing the petition gave “notice thereof to the adverse party, hy delivering a copy thereof to him or his attorney of record.” That, however, is not absolutely required by the rule. Separate affidavit that such notice was given is sufficient although filed after the expiration of the twenty days limited for the petition itself.

3. Comparison of the petition filed in this court with the alleged copy handed to the attorney of the adverse party shows that there was omitted from the latter copy of the signature of the petitioner and of the verification by affidavit which appear in the former. The petition must be signed. A paper containing sufficient allegations is lifeless until signed. It is required by Rule 6 that the petition must be “verified by affidavit.” Such verification is an essential part of the petition. Without it a petition would have to be dismissed. Tufts v. Newton, 117 Mass. 68. Fuller, petitioner, 219 Mass. 209.

Proceedings to establish the truth of exceptions are strictissimi juris. There must be precise compliance with every requirement of the statute and the rule before a petition to establish exceptions can be considered. Bishop, petitioner, 208 Mass. 405. Freedman, petitioner, 222 Mass. 179. John Henry Co. petitioner, 222 Mass. 182. Moneyweight Scale Co. petitioner, 225 Mass. 473, 477. The adversary party is entitled to know from examination of the copy delivered to him that the petitioner is willing to take the responsibility of signing the petition and verifying [432]*432by oath the truths of its allegations, before he is called upon, to defend.

It follows that, since the paper, purporting to be a copy of the-present petition which was delivered to the attorney of record of the adverse party, omitted essential parts of the petition as. filed in this court, the entry must be

Petition dismissed.

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Rugg, C.J.

This is a petition to establish exceptions. Motion to dismiss the petition has been made alleging various grounds.

1. The petition is sufficiently “verified by affidavit,” as required by Rule 6 of the full court rules. The signature of the petitioner, together with the jurat of an authorized magistrate that the petition has been subscribed and sworn to before him, has been held to be compliance with the rule. Rowse, petitioner, 195 Mass. 216, 218.

2. It is customary that the affidavit filed with the petition should contain verification of the fact that the petitioner before filing the petition gave “notice thereof to the adverse party, hy delivering a copy thereof to him or his attorney of record.” That, however, is not absolutely required by the rule. Separate affidavit that such notice was given is sufficient although filed after the expiration of the twenty days limited for the petition itself.

3. Comparison of the petition filed in this court with the alleged copy handed to the attorney of the adverse party shows that there was omitted from the latter copy of the signature of the petitioner and of the verification by affidavit which appear in the former. The petition must be signed. A paper containing sufficient allegations is lifeless until signed. It is required by Rule 6 that the petition must be “verified by affidavit.” Such verification is an essential part of the petition. Without it a petition would have to be dismissed. Tufts v. Newton, 117 Mass. 68. Fuller, petitioner, 219 Mass. 209.

Proceedings to establish the truth of exceptions are strictissimi juris. There must be precise compliance with every requirement of the statute and the rule before a petition to establish exceptions can be considered. Bishop, petitioner, 208 Mass. 405. Freedman, petitioner, 222 Mass. 179. John Henry Co. petitioner, 222 Mass. 182. Moneyweight Scale Co. petitioner, 225 Mass. 473, 477. The adversary party is entitled to know from examination of the copy delivered to him that the petitioner is willing to take the responsibility of signing the petition and verifying [432]*432by oath the truths of its allegations, before he is called upon, to defend.

It follows that, since the paper, purporting to be a copy of the-present petition which was delivered to the attorney of record of the adverse party, omitted essential parts of the petition as. filed in this court, the entry must be

Petition dismissed.

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