Chertok v. Dix
| Decision Date | 23 November 1915 |
| Parties | CHERTOK v. DIX et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Suffolk County; Henry A. King, Judge.
Action by Benjamin H. Chertok against Ervin R. Dix and his trustee. There was a verdict for plaintiff, and defendant Dix filed exceptions. Order dismissing exceptions affirmed.
Samuel L. Bailen and B. H. Chertok, both of Boston, for plaintiff.
Swain, Carpenter & Nay, of Boston (Stoneman, Gould & Stoneman, of Boston, of counsel), for defendant Dix.
The single question presented on this record is whether the defendant gave to the plaintiff the notice required by law of his filing of exceptions. A verdict was rendered against the defendant on June 1, 1914. On June 19, 1914, he filed his exceptions with the clerk of the court. Within 20 days from June 1st, the defendant's counsel left at the office of plaintiff's counsel, with one who was associated with him as junior counsel, a copy of the bill of exceptions correct in every particular including the date and the signature of the attorneys for the defendant. This was delivered to the plaintiff's attorney within the time allowed by law. The copy was backed with a ‘blue jacket’ containing the firm name and address of the defendant's attorneys, the title of the case and the words ‘Defendant's Bill of Exceptions' and ‘Copy.’
By R. L. c. 173, s. 106, ‘notice’ of the filing of exceptions must ‘be given to the adverse party.’ Substantially the same provision is found in rule 44 of the 1906 rules of the superior court. The kind of notice which must be given is fixed by rule 27 to the effect that it ‘shall be in writing, shall be served by delivering of the same personally to the adverse party or his attorney, or depositing it in the post office directed to him, postage prepaid.’
There was a sufficient delivery of the copy to the plaintiff's attorney. Janse v. Boston, 201 Mass. 348, 87 N. E. 633.
Oral notice of the filing, accompanied by an unsigned copy of the bill of exceptions is not a compliance with the rule. Shawmut Commercial Paper Co. v. Brigham, 209 Mass. 199, 95 N. E. 219;Broomfield v. Sheehan, 190 Mass. 585, 77 N. E. 525. The case at bar differs from these only in that the copy was signed and dated and marked ‘Copy.’ But there is no written word which can be construed as a notice of the fact that the original, of which the paper delivered is a copy, has been actually filed in the office of the clerk of courts. A requirement for a written notice must show by some form of words that it is intended to fix rights. Grebenstein v. Stone & Webster...
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Samuel v. Page-Storms Drop Forge Co.
...were dismissed rightly. Day v. McClellan, 236 Mass. 330, 128 N. E. 412;Murch v. Clapp, 228 Mass. 569, 117 N. E. 845;Chertok v. Dix, 222 Mass. 226, 110 N. E. 272;Shawmut Commercial Paper Co. v. Brigham, 209 Mass. 199, 95 N. E. 219. There is nothing in all that is printed in the record which ......
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Sweeney v. Morey & Co.
...to be given by a party as a condition to the taking of further steps in procedure, such as notice of filing exceptions, Chertok v. Dix, 222 Mass. 226, 110 N. E. 272, or of filing motions, Gloucester Mutual Fishing Ins. Co. v. Hall, 210 Mass. 332, 96 N. E. 679, Ann. Cas. 1912D, 348, or of th......
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Fuller v. Andrew
...N. E. 498;Strong v. Carver Cotton Gin Co., 202 Mass. 209, 212, 88 N. E. 582;Lee v. Blodget, 214 Mass. 374, 102 N. E. 67;Chertok v. Dix, 222 Mass. 226, 268,110 N. E. 272;Edwards v. Willey, 218 Mass. 363, 105 N. E. 986;Weil v. Boston Elevated Ry., 216 Mass. 545, 549, 104 N. E. 343; Id., 218 M......
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Day v. McClellan
...77 N. E. 525;Murch v. Clapp, 228 Mass. 569, 117 N. E. 845. The giving of a copy of the exceptions is not of itself notice. Chertok v. Dix, 222 Mass. 226, 110 N. E. 272. Whether there had been a waiver by the adverse parties of their right to insist upon compliance with the rule was upon thi......