Thorndike

Massachusetts Supreme Judicial Court

Thorndike

170 N.E. 67, 270 Mass. 334, 1930 Mass. LEXIS 1024

CourtMassachusetts Supreme Judicial Court

DecidedFebruary 5, 1930

StatusPublished

Cited by9 cases

This text of 170 N.E. 67 (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, 170 N.E. 67, 270 Mass. 334, 1930 Mass. LEXIS 1024 (Mass. 1930).

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Opinion

Rugg, C.J.

This petition to establish the truth of exceptions was filed on December 26, 1929. The respondent, on December 30, 1929, filed a motion to dismiss the petition for failure to give notice and to deliver copy of the petition to the respondent or her attorney as required by Rule 6 of the Rules for the Regulation of Practice before the Full Court (1926). From the affidavit attached to this motion and statements made at the hearing, it appears that on December 26, 1929, the petitioner mailed a letter to the attorney for the respondent addressed to him at 176 Tremont Street, Boston, Massachusetts. His true address appears to have been 276 Tremont Street, Boston, Massachusetts. The letter dated December 26, 1929, stated that there was enclosed a copy of a petition to establish exceptions “which I shall this day file” with the clerk of the court. The envelope containing the letter and copy of petition was postmarked at Boston “Dec 26 1-M 1929.” It was not received until after December 30, 1929, the attorney for the respondent having learned that the petition had been filed on December 26, 1929, through oral statement made on the latter date at a hearing in the Superior Court.

It is provided by said Rule 6 that a party seeking to establish the truth of exceptions “shall, before filing his petition, give notice thereof to the adverse party, by delivering a copy thereof to him or his attorney of record.” This rule is plain. Before the petition is filed, notice must reach the adverse party or his attorney accompanied by copy of the petition proposed to be filed. There must be exact compliance with the rule because proceedings of this nature are strictissimi juris. Failure in any particular requires dismissal of the petition. Thorndike, petitioner, 244 Mass. 429, 431. The rule does not specify precisely how the copy and notice must be delivered. If resort is had to the mail, there must be proof that delivery was made to the adverse party or his attorney of record before the petition was filed. John Henry Co., petitioner, 222 Mass. 182. Corey, petitioner, 253 Mass. 498. There was no such proof in the case at bar. The evidence was all to the con[336]*336trary. The case at bar is quite distinguishable from cases like Gloucester Mutual Fire Ins. Co. v. Hall, 210 Mass. 332, in the facts and in the import of the rules involved.

The motion to dismiss was adequate in form and substance.

It is not inappropriate to add that no merit is disclosed on the face of the petition.

Petition dismissed.

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Rugg, C.J.

This petition to establish the truth of exceptions was filed on December 26, 1929. The respondent, on December 30, 1929, filed a motion to dismiss the petition for failure to give notice and to deliver copy of the petition to the respondent or her attorney as required by Rule 6 of the Rules for the Regulation of Practice before the Full Court (1926). From the affidavit attached to this motion and statements made at the hearing, it appears that on December 26, 1929, the petitioner mailed a letter to the attorney for the respondent addressed to him at 176 Tremont Street, Boston, Massachusetts. His true address appears to have been 276 Tremont Street, Boston, Massachusetts. The letter dated December 26, 1929, stated that there was enclosed a copy of a petition to establish exceptions “which I shall this day file” with the clerk of the court. The envelope containing the letter and copy of petition was postmarked at Boston “Dec 26 1-M 1929.” It was not received until after December 30, 1929, the attorney for the respondent having learned that the petition had been filed on December 26, 1929, through oral statement made on the latter date at a hearing in the Superior Court.

It is provided by said Rule 6 that a party seeking to establish the truth of exceptions “shall, before filing his petition, give notice thereof to the adverse party, by delivering a copy thereof to him or his attorney of record.” This rule is plain. Before the petition is filed, notice must reach the adverse party or his attorney accompanied by copy of the petition proposed to be filed. There must be exact compliance with the rule because proceedings of this nature are strictissimi juris. Failure in any particular requires dismissal of the petition. Thorndike, petitioner, 244 Mass. 429, 431. The rule does not specify precisely how the copy and notice must be delivered. If resort is had to the mail, there must be proof that delivery was made to the adverse party or his attorney of record before the petition was filed. John Henry Co., petitioner, 222 Mass. 182. Corey, petitioner, 253 Mass. 498. There was no such proof in the case at bar. The evidence was all to the con[336]*336trary. The case at bar is quite distinguishable from cases like Gloucester Mutual Fire Ins. Co. v. Hall, 210 Mass. 332, in the facts and in the import of the rules involved.

The motion to dismiss was adequate in form and substance.

It is not inappropriate to add that no merit is disclosed on the face of the petition.

Petition dismissed.

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170 N.E. 67, 270 Mass. 334, 1930 Mass. LEXIS 1024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thorndike-mass-1930.

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