Boston Morris Plan Co. v. Barrett

• Citation: 272 Mass. 487,172 N.E. 603
• Parties: BOSTON MORRIS PLAN CO. v. BARRETT et al.
• Decision Date: 13 September 1930
• Court: United States State Supreme Judicial Court of Massachusetts

272 Mass. 487

172 N.E. 603

BOSTON MORRIS PLAN CO.

v.BARRETT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 13, 1930.

Report from Municipal Court of Boston, Appellate Division; Michael J. Creed, Judge.

Action of contract by the Boston Morris Plan Company against Mary Barrett and others. On reports from the municipal court.

Order dismissing reports affirmed.

N. Golden, of Boston, for plaintiff.

Timothy F. Collins, of Boston, for defendant.

RUGG, C. J.

This action of contract is against three persons alleged to be makers of a promissory note. The defendant Handlin filed an answer setting out general denial and denial of the genuineness of his signature and demand that it be proved at the trial. The defendant Taylor answered by general denial and denial of his signature without demand of proof of its genuineness at the trial. G. L. c. 231, § 29. The plaintiff filed the original note in the clerk's office and written notices of call upon the defendant Handlin and the defendant Taylor to admit the execution of the note in accordance with G. L. c. 231, § 69, as amended by St. 1926, c. 381, § 1, together with affidavit that copy of the notice had been mailed to each defendant. Neither defendant made an answer within the ten days specified in said section 69 as amended. Thereafter by leave of court each defendant was allowed to file an answer to the notice, the time therefor not having been extended before the expiration of the initial ten days. Finding was made in favor of Handlin and of Taylor after trial on the merits. The decisive question for decision is whether the trial judge could as matter of law allow the defendants to file answer to the call in these circumstances.

The relevant words of said section 69, as amended by said St. 1926, c. 381, § 1, are: ‘In any action at law * * * a party by written notice filed in the clerk's office and served by copy on the other party or his attorney, not less than ten days before the trial * * * may call upon the other party to admit * * * any material fact or facts or the execution of any material paper or document which he intends to use at the trial. * * * If no answer is filed in the clerk's office within ten days after the filing therein of said notice or within such further time as the court may on motion allow, the truth of the fact or facts or the execution of the paper or document shall, for the purposes of the case, be held to be admitted.’ The method of delivering copy of the written notice is described in the statute only by the words that it must be ‘served by copy.’ These words respecting proceedings in court commonly mean the kind of service employed in legal process, that is, service by an officer authorized to make service of civil process. This meaning is emphasized by other provisions of the practice act. There are sections of G. L. c. 231, some providing simply for ‘notice,’ section 74, or that notice to the adversary party be ‘sent,’ section 63, as amended by St. 1922, c. 314, or ‘given,’ section 113, or ‘served by registered mail,’ section 60A inserted by St. 1929, c. 173, § 1, and others that notice be given as provided by rule or order of court, sections 40, 41, 59, 127. Such notices often are delivered by mail. The statutory language is significantly different in section 69, as amended. To give notice or to send notice or to give notice in such way as the court may establish by rule or direct by order is essentially different from a statutory mandate that copy of a notice be ‘served.’ If it had been the legislative purpose to permit service of such notice merely by mail, it would have been easy to express that purpose. Compare St. 1929, c. 173, § 1.

It also is provided by said section 69 that the time for filing answer to the matters set forth in the notice shall be within ten days after the filing of the notice or ‘within such further time as the court may on motion allow.’ This provision doubtless was designed to discourge frivolous defences or matters interposed in the pleadings chiefly for delay, and to expedite the conclusion of litigation. It is somewhat drastic in the results thereby visited upon a party who fails to answer. It is easy to imagine cases where by reason of absence, sickness or temporary inaccessibility of party, attorney or judge ten days might pass without answer and without want of prompt attention by a party, and without opportunity to file motion to extend the time and secure allowance of the same. Wide powers have been vested in courts to grant amendments of form or substance to process, pleadings or proceeding in order to enable justice to be done. See Pizer v. Hunt, 253 Mass. 321, 148 N. E. 801, for review of statutes and decisions. We think that it can hardly have been intended to establish the inflexible rule that a court could not do what justice requires as to time in exceptional instances under section 69. Although its words are somewhat similar to those in G. L. c. 231, § 113, as to time of filing exceptions, yet the end to be...