Opinion
March 28, 1911.
May 19, 1911.
Present: KNOWLTON, C.J., MORTON, HAMMOND, BRALEY, RUGG, JJ.
The giving of an oral notice of the filing of a bill of exceptions to the counsel of the adverse party on the day of the filing and furnishing him on the same day with an unsigned copy of the bill of exceptions are not a compliance with Rule 44 of the Superior Court, which requires that notice of the filing of a bill of exceptions shall be given to the adverse party within the required time, and Rule 27, which prescribes that a notice required by the rules of the Superior Court shall be in writing.
E.I. Smith, for the defendants.
E.M. Schwarzenberg, for the plaintiff.
This is an action to recover upon a promissory note. The plaintiff had a verdict and the defendant alleged exceptions. The time for filing the exceptions was extended and on the last day a bill of exceptions was duly filed. Two days after the plaintiff moved to dismiss them on the ground that the defendants had given it no sufficient notice of the filing of the exceptions. The judge ruled as matter of law that the motion should be allowed and dismissed the exceptions. The defendants excepted, and the question is whether as matter of law the motion was rightly allowed.
Richardson, J.
Rule 44 of the Superior Court, established in 1906, provides that "Exceptions alleged in . . . a civil case shall be reduced to writing and filed, and notice thereof given to the adverse party . . ." Rule 27 provides that "A notice required by, or given in pursuance of, these rules, shall be in writing. . . ." The only notice given of the filing of the exceptions was an oral notice to counsel for the plaintiff on the day of the filing, and the furnishing him on the same day with an unsigned copy of the bill of exceptions. This plainly did not constitute a written notice. Broomfield v. Sheehan, 190 Mass. 585. There was nothing which constituted a waiver or could be found to constitute a waiver of the written notice.
Exceptions overruled.