In re Thorndike
| Decision Date | 05 February 1930 |
| Citation | 170 N.E. 67,270 Mass. 334 |
| Parties | In re THORNDIKE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Petition by Carrie A. Thorndike to establish exceptions. Petition dismissed.
Carrie A. Thorndike, pro se.
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 1926 Rules for the regulation of practice before the full court. 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 inclosed 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.
[1][2] It is provided by 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. Petition of Thorndike, 244 Mass. 429, 431, 139 N. E. 208. 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. In re John Henry Co., 222 Mass. 182, 111 N. E. 720;petition of Corey, 253 Mass. 498, 149 N. E. 203. There was no such proof in the case at bar. The evidence was all to the contrary.The case at bar is quite...
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