In re Thorndike
| Decision Date | 28 March 1923 |
| Citation | 139 N.E. 208,244 Mass. 429 |
| Parties | Petition of THORNDIKE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Petition by Carolyn A. Thorndike to establish exceptions. On motion to dismiss the petition. Petition dismissed.
Carolyn A. Thorndike and Robert J. White, of Boston, for petitioner.
Wm. G. Thompson and Romney Spring, both of Boston, for respondent Rantoul.
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 a compliance with the rule. Rowse, Petitioner, 195 Mass. 216, 218, 80 N. E. 822.
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, by 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 20 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, 106 N. E. 851.
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, 94 N. E. 479; Freedman, Petitioner, 22i Mass. 179, 110 N. E. 161;John Henry Co., Petitioner, 222 Mass. 182, 111 N. E. 720;Moneyweight Scale Co., Petitioner, 225 Mass. 473, 477, 114 N. E. 741. The adversary party is entitled to know from examination of the copy delivered to him that the...
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In re Thorndike
...alleged to have been saved by her at that trial. That petition was dismissed on March 27, 1923. The decision is reported in 244 Mass. 429, 139 N. E. 208. That ended the litigation touching all questions of law raised or alleged to have been raised up to that time. On January 31, 1925, the p......
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Commonwealth v. Kossowan
...was dismissed by rescript containing as the brief statement of the reasons for decision this: ‘Case governed by Petition of Thorndike. 244 Mass. 429, 139 N. E. 208, and by In re Bishop, 208 Mass. 405, 407, 94 N. E. 479, and Petition of Koch, 225 Mass. 148, 150, 114 N. E. 79.’ No opinion was......
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Donovan v. Donovan
...(1932), but instead mailed an unsigned copy to the attorney for the defendant. That was not a compliance with the rule. Petition of Thorndike, 244 Mass. 429, 139 N.E. 208. Because of this failure to comply with the rule the defendant filed a motion to dismiss the motion for a new trial. A h......
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Hodgerney v. Baker
...of the bill of exceptions be sent to the adverse party. Dutton v. Bennett, 256 Mass. 397, 152 N.E. 621. The cases of Petition of Thorndike, 244 Mass. 429, 139 N.E. 208;Wilson v. Checker Taxi Co., 263 Mass. 425,167 N.E. 803;In re Thorndike, petitioner, 270 Mass. 334, 170 N.E. 67, and other c......