305 Mass. 470 | Mass. | 1940
The question to be decided is whether or not there was error in dismissing the plaintiff’s exceptions for failure to give sufficient notice of the filing of his bill of exceptions.
It is provided by G. L. (Ter. Ed.) c. 231, § 113, that exceptions shall be filed, “and notice thereof shall be given to the adverse party,” within twenty days after the ver
In this case the sequence of events was as follows: The verdict was rendered September 30, 1938. Before 3 p.m. on October 19 the plaintiff mailed his bill of exceptions, addressed to the clerk. On the same day at 8 p.m. the plaintiff mailed a notice, addressed to the defendant’s counsel, stating that he enclosed a copy of the bill “filed by the plaintiff.” The bill of exceptions reached the clerk’s office in the forenoon of October 20. The notice reached the defendant’s counsel after 4 p.m. on October 20. In other words, a notice, stating in substance that the bill of exceptions had been filed, reached the defendant’s counsel after the bill had in fact been filed and within the required twenty days.
When the notice was mailed it did not speak the truth, for the bill of exceptions had not then been filed. In view of the strictness with which all matters relating to time in appellate procedure are judged, this notice, considered him-ply as a notice by depositing in the post office without regard to its subsequent receipt by the addressee, was insufficient. But under Rule 3 notice may be given by delivery as well as by mailing. If the plaintiff, either himself or by a messenger, had delivered the notice personally to the defendant’s counsel at the time when that counsel did in fact receive it, the notice would have complied in all
The exceptions now before us are sustained, and an order is to be entered denying the defendant’s motion to dismiss the plaintiff’s original exceptions.
So ordered.