Purcell v. Boston, H. & P.E.I.S.s. Line
| Decision Date | 26 February 1890 |
| Citation | 23 N.E. 834,151 Mass. 158 |
| Parties | PURCELL v. BOSTON, H. & P.E.I.S.S. LINE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Eugene
J. Hadley, for plaintiff.
James W. Rollins, for defendant.
The defendant's exceptions cannot be entertained and considered, because the defendant failed to give to the plaintiff the notice required by Pub.St. c. 153, § 8. It is there provided that exceptions An extension of time was given, which expired June 13th, on which day the defendant filed exceptions, but gave no notice to the plaintiff until June 24th. There is no room for the suggestion of the defendant that when a further time is allowed no notice at all need be given to the adverse party. The plaintiff has never waived the omission to give seasonable notice to him, and he raised the objection before the allowance of the exceptions. The giving of the notice seasonably to the adverse party is made essential by the statute, and the plaintiff had a right to insist upon his objection; and, under this state of things, the court could not properly allow the defendant's exceptions. Spofford v. Loveland, 130 Mass. 6; Conway v. Callahan, 121 Mass. 165.
The usual and sufficient method of presenting a question of this kind is by a certificate of the facts made by the presiding justice upon the bill of exceptions. Conway v. Callahan, ubi supra; Browne v. Hale, 127 Mass. 158, 161. But, since it was a question of law whether, under the circumstances, the court had a right to allow the exceptions, the plaintiff might properly present that question by a separate bill of exceptions, as was done in Cowley v. McLaughlin, 141 Mass. 181, 183, 4 N.E. 821; Pub.St. c. 153, § 8. Plaintiff's exceptions sustained. Defendant's exceptions dismissed.
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