McLellan v. Fuller
| Decision Date | 20 November 1914 |
| Citation | 219 Mass. 209,106 N.E. 851 |
| Parties | McLELLAN v. FULLER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
R. W. Gloag, of Boston, for plaintiff.
S. A. Fuller, of Boston, for defendant.
This is a petition to establish the truth of exceptions disallowed by the presiding judge. These facts are admitted: The petitioner prepared his petition in accordance with the statute and verified it by affidavit. Thereafter he added to it averments as to the date on which notice of the disallowance of his exceptions was received by him, and that within 20 days thereafter he filed the present petition after giving notice of the filing to counsel for the other party. He made no supplemental, additional or new affidavit after this addition. It is not necessary to determine whether these additional averments were necessary in view of other facts stated in the petition. They were inserted in and made a part of the petition after the affidavit was made and before it was filed. Hence, a part of the petition never was verified by affidavit, although on its face, apart from outside evidence, the oath appeared to apply to the entire petition and all its allegations of facts.
The strictest compliance with all the provisions of the rule as to procedure always has been held essential in cases like the present. Rule 6, for the regulation of practice before this court, requires that the petition must be 'verified by affidavit.' This means that the truth of all facts which the petitioner thinks sufficiently material to be in the petition must be supported by oath. It prohibits the insertion of additional averments after the affidavit has been made and without indicating that the affiant does not assume responsibility for their truth. Manifestly such practice as the present record discloses does not accord with the letter or with the spirit of the rule. Tufts v. Newton, 117 Mass. 68; Hadley v. Watson, 143 Mass. 27, 9 N.E. 806; Bishop, Pet'r, 208 Mass. 405, 94 N.E. 479. The reason for this is that such a petition undertakes to control the statement of a judge made under the solemn obligations of his official duty. Justice does not demand an investigation of the subject unless some one is willing to assume the burden of making oath to the truth of all the facts on which action is sought.
Petition dismissed.
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