Clemens Electrical Manuf'g Co. v. Walton
| Decision Date | 21 May 1897 |
| Citation | 168 Mass. 304,47 N.E. 102 |
| Parties | CLEMENS ELECTRICAL MANUF'G CO. v. WALTON. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Everett W. Burdett and Charles A. Snow, for petitioner.
Stephen H. Tyng, for respondent.
In an action at law brought in the superior court for the county of Bristol, and tried by the court without a jury, the finding was for the plaintiff, and the defendant alleged exceptions. The exceptions were disallowed by the presiding justice of the superior court, and thereupon the defendant filed a petition in this court to establish the truth of the exceptions. Two motions were made in this court,--one by the plaintiff that the petition be dismissed the other by the defendant that a commissioner be appointed to hear the evidence, and report whether the exceptions alleged have been established as true. The facts have been agreed by the parties. The defendant's attorneys received notice on December 24, 1896, that the exceptions had been disallowed by the presiding justice of the superior court. On January 12, 1897, through an attorney at law, they presented the petition to establish the truth of the exceptions at the office of the clerk of courts at Taunton, in said county of Bristol. The office was in charge of Miss Wood; the clerk of the courts for that county being at that time in Florida, and the assistant clerk being in attendance upon the superior court, then sitting at Fall River. Miss Wood received the petition, and indorsed on it the following No entry fee was paid or demanded. On the evening of January 13th the assistant clerk returned to Taunton, and Miss Wood called his attention to the petition, and on the morning of the 14th he wrote to the defendant's attorneys that the petition "was not filed or entered upon the docket of the supreme judicial court for the reason that no entry fee was paid." On the same day the attorneys of the petitioner replied, inclosing the entry fee, saying, "We regret that our representative was not asked to pay it, as he would have done if he had understood that it was required." On January 15th the assistant clerk wrote them, acknowledging the receipt of the entry fee, and saying, " The defendant's attorneys protested against this change. The affidavit of the attorney at law who presented the petition states that he fully explained to Miss Wood that he wished her to file and enter the petition immediately; that she replied that she understood what was wanted, and would file and enter the petition immediately; and that he was ready and willing to pay all fees, but he was not aware that an entry fee was required. It is to be inferred that Miss Wood did not know, or, if she knew, did not remember, that an entry fee was required.
The statutory provisions which concern the establishing of the truth of exceptions which have been disallowed are found in Pub.St. c. 153, § 13, and the rule made by this court pursuant to said section is common-law rule 30. 136 Mass 598. The rule requires a party to file his petition within 20 days after notice of the refusal of the justice to sign and allow the bill of exceptions "in the court in which the exceptions would by law have been entered if duly signed and allowed," etc. January 12, 1897, was the nineteenth day after notice of such refusal, and January 14th was the twenty-first day after such notice. The contention of the plaintiff is that this petition is within St.1891, c. 87; that an entry fee of three dollars was payable; and that the provision that "no such action, libel for divorce, or petition shall be entered or filed by the clerk until said fee is paid," is a condition precedent to the right to file such a petition, and that there could be no legal filing until such an entry fee had been paid. The contention of the defendant is that this statute does not relate to petitions filed in the full court of the supreme judicial court, or that, if it does, the provision we have cited is only directory to the clerks, and was not intended to affect the rights of parties when a petition had been actually filed, particularly when an entry fee was not paid because it was not demanded, and it...
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