Practice, Civil, Exceptions. Notice. Rules of Court.
Upon the question whether under St. 1911, c. 212, § 1, and Superior Court Rules 52 and 28, the defendant in an action at law had given notice to the plaintiff of the filing of exceptions, a judge of the Superior Court found that a letter purporting to be a notice was addressed to the plaintiff's attorney at Brockton and not at his address in Boston, that the true address was in Boston, that the plaintiff's attorney had no office in Brockton and that he received no notice. There was evidence warranting this finding. Held, that the finding of fact must stand.
BY THE COURT.
It is required by St. 1911, c. 212, § 1, and the present Rules 52 and 28 of the Superior Court, that written notice of the filing of exceptions shall be given to the adverse party and "served by delivering the same personally to the adverse party, or his attorney, or depositing it in the post-office directed to him, at his business address, if known, postage prepaid, and an affidavit of the party making the service shall be prima facie proof thereof."
The defendant's bill of exceptions was filed on July 31, 1917. His attorney made affidavit to the effect that he mailed a letter directed to the plaintiff's attorney which "had not been returned to his office and that he was reasonably sure the address thereon had been changed from Pemberton Building, Brockton, Mass., to Pemberton Building, Boston, Mass. before the same had been mailed." An affidavit also was filed that no notice of the filing of the exceptions had been received by the plaintiff's attorney. The judge made a finding of fact that the letter purporting to be a notice was addressed to Brockton and not to Boston and that the true address was Boston, and that the plaintiff's attorney had no office in Brockton and that he received no notice. This finding of fact must stand. It is not unsupported by evidence. It may have been inferred rationally that the address on the letter had not been changed from Brockton to Boston. If that were so, no notice had been given as required by the Superior Court rules. The case falls within the principle of Shawmut Commercial Paper Co. v. Brigham, 209 Mass. 199, and Chertok v. Dix, 222 Mass. 226.
Exceptions overruled.