Home THEOPHITUS PEPIN vs. WALTER E. KILGOUR.

314 Mass. 764

September 29, 1943

Appeals from Appellate Division dismissed. This action of contract was brought in a District Court. Upon a report the Appellate Division ordered a new trial. From this order both the plaintiff and the defendant appealed to this court. These appeals have no standing and must be dismissed. Weiner v. Pictorial Paper Package Corp. 303 Mass. 123 , 125-127.

Home JACOB NESSON vs. JOHN A. MISSEL.

314 Mass. 764

October 7, 1943

Appeal dismissed. In this action at law in the Superior Court, the defendant demurred to the declaration. On June 11, 1943, the plaintiff appealed from this order. G. L. (Ter. Ed.) c. 231, Section 96. The case became "ripe for final preparation and printing of the record for the full court" on that day. The plaintiff, however, gave no order for such preparation until July 9, 1943, more than ten days thereafter. Such order, therefore, was not given within the requirements of G. L. (Ter. Ed.) c. 231, Section 135, as last amended by St. 1941, c. 187. The plaintiff's appeal on July 2, 1943, from an order denying a so called motion that the demurrer be overruled did not extend the time for giving an order for the preparation of papers. The appeal, therefore, must be dismissed.

Home CHARLES SIMMONS, petitioner to establish the truth of exceptions.

314 Mass. 764

October 28, 1943

Petition dismissed. And it is further ordered that the clerk make appropriate entries upon the docket of the Superior Court for said County of Bristol in the case of Charles Simmons vs. Emma Lavertu which is there pending. This is a petition of the plaintiff in the case of Charles Simmons vs. Emma Lavertu -- tried in the Superior Court -- to establish the truth of exceptions disallowed by the trial judge. G. L. (Ter. Ed.) c. 231, Section 117. Rule 6 of the Rules of the Supreme Judicial Court for the Regulation of Practice before the Full Court (1926,) 252 Mass. 585 , 587. Rule 6 requires that a petition be "verified by affidavit" and notice be given to the adverse party "by delivering a copy thereof [that is, of the petition] to him [the adverse

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party] or his attorney of record." This rule provides that "no party shall be allowed to establish the truth of any such allegations [that is, the allegations in the bill of exceptions] in this court, if he has failed to comply with the requisitions herein prescribed." Verification of the petition by affidavit is required. The jurat of an authorized magistrate that the petition has been sworn to before him is essential to such an affidavit. Comparison of the petition filed in this court with the alleged copy thereof sent to the adverse party shows no affidavit upon the copy such as appears upon the petition. Though the alleged copy contains a form for a jurat, it does not contain the name of any authorized magistrate and does not show that the petition was ever actually sworn to before such a magistrate. This was a material variance. The requirement of the rule that the petitioner "give notice thereof to the adverse party, by delivering a copy thereof [that is, of the petition] to him or his attorney" was not complied with. "Proceedings to establish the truth of exceptions are strictissimi juris. There must be precise compliance with every requirement of the statute and the rule before a petition to establish exceptions can be considered. . . . The adversary party is entitled to know from examination of the copy delivered to him that the petitioner is willing to take the responsibility of signing the petition and verifying by oath the truths of its allegations, before he is called upon to defend." Thorndike, petitioner, 244 Mass. 429 , 431-432. Whether there was noncompliance with the statute or the rule in other particulars need not be considered. Nor need it be considered whether the bill of exceptions, if allowed, would present any substantial question worthy of judicial inquiry. Lovell v. Lovell, 276 Mass. 10 , 11-12. The petition must be dismissed.