Saunders v. Shoe Lace Co‪.‬

RUGG, Chief Justice. This is a petition for a writ of mandamus. The case was heard upon the pleadings and an auditor's report. An order was made that the writ issue as prayed for. Thereafter the respondents filed a bill of exceptions, and the petitioner moved to dismiss the bill on the ground that the notice given was defective and not in accordance with the governing statute. The evidence on this point showed that a bill of exceptions of the respondents was prepared and sent by mail, postage prepaid, to the clerk of courts at Salem on February 13, 1935, accompanied by a letter requesting that the exceptions be filed. Thereafter on the same day there was deposited in the mail, postage prepaid, a notice to the attorney for the petitioner stating that there had been sent to the office of the clerk of courts at Salem a bill of exceptions, copy of which was enclosed. In due course the letter to the clerk of courts and the bill of exceptions should have reached him on the morning of February 14, 1935, and the letter addressed to the attorney for the petitioner should have reached his office on the same morning. The respondents requested rulings that (1) upon all the evidence a finding would not be warranted that there was no compliance with the statute, and (2) upon all the evidence the motion should be denied. The court refused to grant these requests for rulings, and made an order allowing the petitioner's motion to dismiss the bill of exceptions.