310 Mass. 466 | Mass. | 1941
This is an action of tort under G. L. (Ter. Ed.) c. 140, § 155, as appearing in St. 1934, c. 320, § 18, to recover damages against the defendant as the owner or keeper of a dog which, the plaintiff alleges, seized the leg of his trousers as he was walking in front of the defendant’s premises, and then got between his legs, causing him to fall to the sidewalk with such violence as to fracture his hip. The defendant excepted to the denial of his motion for a directed verdict. The plaintiff had a verdict.
The plaintiff in order to recover was required to show that his injuries were caused by a dog that was owned or
The plaintiff was entitled to recover if he proved his injury was caused by a dog owned by the defendant, and
The plaintiff excepted to the denial of his motion to dismiss the defendant’s bill of exceptions on the ground that notice of the filing of the bill was not given as required by G. L. (Ter. Ed.) c. 231, § 113, and Rule 3 of the Superior Court (1932). The bill was seasonably filed on January 22, 1941, and thereafter on the same day a letter dated January 20, 1941, was delivered to the office of the plaintiff’s attorney, enclosing a copy of the bill and stating that the bill was “this day filed in court.” The judge could find from the affidavits upon which the motion was heard that notice of the filing of the bill had reached the plaintiff’s attorney on January 22, 1941, that he then knew the bill had been filed, that the date on the letter was a mistake, and that the notice was sufficient. The statute, G. L. (Ter. Ed.) c. 231, § 113, requires that exceptions be reduced to writing “and filed with the clerk, and notice thereof . . . given to the adverse party.” The purpose of the statute is to inform the other party that the bill has actually been filed. Such information was furnished in this case. While there must be a strict compliance with the statute in reference to giving notice of the filing of the bill, yet where the bill is actually filed and notice thereof given seasonably we think that such a notice is not rendered invalid by an inadvertent statement that the actual filing date was two days earlier. Checkoway v. Cashman Brothers Co. 305 Mass. 470. There is a distinction between such a discrepancy in the notice and a statement therein that a bill of exceptions has been filed when no bill has in fact been filed. Arlington Trust Co. v. Le Vine, 289 Mass. 585. Saunders v. Shoe Lace Co. 293 Mass. 265. LaFond v. Registrars of Voters of Gardner, 296 Mass. 453.
Plaintiff’s exceptions overruled.
Defendant’s exceptions overruled.