Practice, Civil, Exceptions. Rules of Court.
A petition to establish exceptions is sufficiently "verified by affidavit" within the requirements of Rule 6 of this court if it is signed by the petitioner and contains the jurat of an authorized magistrate that the petition has been subscribed and sworn to before him.
If, in proceedings to establish exceptions under Rule 6 of this court, the petitioner after the giving of the notice and the filing of the petition in accordance with the rule, and after the expiration of the twenty days limited for the filing of the petition, files a separate affidavit that notice of the petition was given by the petitioner "to the adverse party by delivering a copy thereof to him or his attorney of record" before filing the petition, it is a sufficient compliance with that rule.
Proceedings under G.L.c. 231, § 117, and Rule 6 of this court to establish the truth of exceptions are strictissimi juris, and before a petition for that purpose can be considered there must have been precise compliance with every requirement of the statute and the rule.
The signature of the petitioner and his verification by affidavit are an essential part of a petition under G.L.c. 231, § 117, and Rule 6 of this court to establish the truth of exceptions, and, if they are omitted from the copy of such a petition delivered by the petitioner to the adverse party, the petition will be dismissed.
RUGG, C.J.
This is a petition to establish exceptions. Motion to dismiss the petition has been made alleging various grounds.
1. The petition is sufficiently "verified by affidavit," as required by Rule 6 of the full court rules. The signature of the petitioner, together with the jurat of an authorized magistrate that the petition has been subscribed and sworn to before him, has been held to be compliance with the rule. Rowse, petitioner, 195 Mass. 216, 218.
2. It is customary that the affidavit filed with the petition should contain verification of the fact that the petitioner before filing the petition gave "notice thereof to the adverse party, by delivering a copy thereof to him or his attorney of record." That, however, is not absolutely required by the rule. Separate affidavit that such notice was given is sufficient although filed after the expiration of the twenty days limited for the petition itself.
3. Comparison of the petition filed in this court with the alleged copy handed to the attorney of the adverse party shows that there was omitted from the latter copy of the signature of the petitioner and of the verification by affidavit which appear in the former. The petition must be signed. A paper containing sufficient allegations is lifeless until signed. It is required by Rule 6 that the petition must be "verified by affidavit." Such verification is an essential part of the petition. Without it a petition would have to be dismissed. Tufts v. Newton, 117 Mass. 68. Fuller, petitioner, 219 Mass. 209.
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. Bishop, petitioner, 208 Mass. 405. Freedman, petitioner, 222 Mass. 179. John Henry Co. petitioner, 222 Mass. 182. Moneyweight Scale Co. petitioner, 225 Mass. 473, 477. 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.
It follows that, since the paper, purporting to be a copy of the present petition which was delivered to the attorney of record of the adverse party, omitted essential parts of the petition as filed in this court, the entry must be
Petition dismissed.