Thorndike v. County Commissioners

117 Mass. 566 | Mass. | 1875

Colt, J.

Application for a jury to revise the judgment of the county commissioners in the assessment of damages occasioned by the widening of highways may be made by a party aggrieved within one year from the adoption of the order for the same. Gen. Sts. e. 43, § 22. Under this provision, upon a petition duly presented, an order for a jury was passed by the county commissioners at a regular meeting of the board and entered upon the docket. It is required that when a jury is so ordered they shall be summoned and give in their verdict within three months next after the date of the order. Gen. Sts. e. 43, § 40.

The petitioner now alleges that he had no knowledge of the passing of this order until after the three months had expired , that he did not apply for a warrant himself, because he expected that there would be no order passed upon his petition without notice to him or to his attorney; and because he expected that there would soon be a new location of the way made and a revision of the former action of the commissioners had. He charges the commissioners with neglect of duty in not giving notice of the order to him, and in not causing the warrant to be placet, seasonably in the hands of the proper officer for service.

It was found as a fact at the hearing upon this petition, that the petitioner, although he had conversation with one or more individaal commissioners in reference to a relocation of the street, and believed and bad good reason to believe that some action would be taken to that end, was nevertheless informed by them, that such action could be had only on regular petition and service, and no cause is shown which makes it proper for this court to interfere by writ of mandamus.

The order for the warrant for a jury was granted upon the petitioner’s application. It was his duty to take notice of the action of the commissioners upon it, and to take the necessary steps under that order. It was not for the commissioners to see that the warrant was prepared and put into the hands of the proper officer for service, so that the verdict might be seasonably rendered. The petitioner’s right to a jury was a right which he might waive and abandon, and which must be taken to have been abandoned if the statute requirement is not complied with. The petitioner fails to show a good excuse for his neglect. It is not a case where a verdict has failed to be returned by inevitable accident over which the petitioner had no control, or by the fault of some officer charged with the execution of the process, or by the failure of the jury to agree. Taylor v. County Commissioners, 13 Met. 449, 452. Petition dismissed.