308 A.2d 554 (Me. 1973), Lund ex rel. Wilbur v. Pratt

Citation308 A.2d 554
Opinion JudgeDUFRESNE,
Party NameJon A. LUND, Attorney General For the State of Maine, ex rel. Evelyn M. WILBUR v. Norman G. PRATT.
AttorneyRanger & McTeague by Orville T. Ranger, Brunswick, for plaintiff. Pelletier & Runyon by Elmer E. Runyon, Sanford, for defendant.
Judge PanelBefore DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.
Case DateJuly 31, 1973
CourtSupreme Judicial Court of Maine

Page 554

308 A.2d 554 (Me. 1973)

Jon A. LUND, Attorney General For the State of Maine, ex

rel. Evelyn M. WILBUR

v.

Norman G. PRATT.

Supreme Judicial Court of Maine.

July 31, 1973

Page 555

[Copyrighted Material Omitted]

Page 556

Ranger & McTeague by Orville T. Ranger, Brunswick, for plaintiff.

Pelletier & Runyon by Elmer E. Runyon, Sanford, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

The instant case was reported to the Law Court under Rule 72(a), M.R.C.P. upon the complaint, answers, agreed statement of facts and stipulation of the parties, for this Court to render such decision as the rights of the parties require.

The complaint states that the action is brought under the provisions of Rule 81 of the Maine Rules of Civil Procedure. The parties, in their agreed statement of facts, so expressly characterize the nature of the complaint and more specifically advance, as the ultimate purpose of these proceedings, their desire to obtain a determination, whether the defendant, Norman G. Pratt, is entitled to hold simultaneously the office of municipal assessor of the Town of Parsonsfield and that of Representative to the Legislature of the State of Maine from the class towns of Cornish, Limerick, Newfield, Parsonsfield, Shapleigh and Waterboro.

The complaint is dated July 14, 1971 and the report of the case January 17, 1972. The case was argued before the Law Court at the May term, 1972. The defendant's term of office as municipal assessor had already expired in March 1972. His term as Representative to the Legislature terminated when the 106th Legislature convened in January 1973. The report is discharged.

The caption of the case indicates that the action is being brought in the name of the Attorney General for the State of Maine on behalf of one Evelyn M. Wilbur, Plaintiff of Parsonsfield, York County, State of Maine. The individual plaintiff, albeit through the Office of the Attorney General, seeks the following relief:

1) a determination whether the offices of Representative to the Legislature and Municipal Assessor are incompatible;

2) a resolution of the question whether and for what periods defendant's acts as Representative and Assessor are void;

3) a decree ordering the defendant to return to the State of Maine and the Town of Parsonsfield respectively all amounts paid to defendant which he received while serving in the incompatible offices; and

4) costs and such other and further relief which justice may require.

Initially, let us say that the pleadings nowhere disclose the interest of Evelyn M. Wilbur in the maintenance of the action. It is not suggested that she is contesting either office to which the defendant was elected. Although the parties have stipulated the moneys received by the defendant in each office during the respective years 1969, 1970 and 1971, her authority to prosecute this collection proceeding for the Town of Parsonsfield or for the State of Maine is not disclosed. Neither the State of Maine as such, nor the Town is a party

Page 557

to the action. The pleadings are silent respecting the particular interest of the individual plaintiff, whether arising out of her right to vote or of her duty to pay taxes in the Town of Parsonsfield, or otherwise. As a matter of fact, her possible interest as a resident only appears in the caption.

The caption of a complaint constitutes no part of the statement of the cause of action, and the rights of the parties to relief cannot be made to depend upon what may appear in the caption of the case. The caption is no part of the pleading, unless made so by express reference thereto in the pleading itself. See, McDonough v. Waxman, 1930, 103 Cal.App. 169, 284 P. 482; Savannah Sugar Refining Company v. Royal Crown Bottling Co., 1963, 259 N.C. 103, 130 S.E.2d 33; Cook v. Wheeler, 1920, Mo.App., 218 S.W. 929; Jenkins v. Pullman Co., 1938, 9 Cir., 96 F.2d 405; Jackson v. Ashton, 1834, 8 Peters 148, 8 L.Ed. 898.

True, an appendix to one of the briefs would indicate that the individual plaintiff was an assessor with the defendant for the Town of Parsonsfield. Briefs are merely written arguments and are no part of the pleadings. City of New Orleans v. DiBenedetto, 1962, La.App., 144 So.2d 558. Neither the complaint, the agreed statement of facts, nor the stipulation of the parties carries such information. Our rules of civil procedure do not sanction such loose informational technique in connection with matters determinative of the standing of parties to an action.

The individual plaintiff, whose particular interest in the subject matter of this litigation remains undisclosed, in effect is contesting, in the name of the Attorney General of the State of Maine, the right of the defendant as a de facto officer to hold certain municipal and legislative offices and is further seeking from this Court, through declaratory judgment or other affirmative remedial relief, remittance, to the municipality or the State respectively, of all remuneration received while holding allegedly incompatible municipal and legislative offices.

Since the individual plaintiff makes no claim to either...

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41 practice notes
  • 99 F.Supp.2d 1 (D.D.C. 1999), 98-3114, Federal Trade Com'n v. Mylan Laboratories, Inc.
    • United States
    • Federal Cases United States District Courts District of Columbia
    • 14 Diciembre 1999
    ...General are sufficiently broad to encompass a parens patriae action on behalf of indirect purchasers. See Lund ex rel. Wilbur v. Pratt, 308 A.2d 554, 558 (1973) ("As the chief law officer of the State, [the Maine Attorney General] may, in the absence of some express legislative restric......
  • 402 A.2d 860 (Me. 1979), Buck v. Town of Yarmouth
    • United States
    • Maine Supreme Judicial Court of Maine
    • 21 Junio 1979
    ...the State, the preservation of order, and The protection of public rights." (Emphasis in original) Lund ex rel. Wilbur v. Pratt, Me., 308 A.2d 554, 558 (1973). The section 2053 right to petition the municipal officers to place an article in the next warrant or to call a special meeting......
  • 329 N.W.2d 575 (N.D. 1983), 10362, State ex rel. Olson v. Bakken
    • United States
    • North Dakota Supreme Court of North Dakota
    • 14 Enero 1983
    ...its members. In re McGee, 36 Cal.2d 592, 226 P.2d 1 (1951); Lee v. Lancaster, 262 So.2d 124 (La.App.1972); Lund ex rel. Wilbur v. Pratt, 308 A.2d 554 (Me.1973); Opinion of Justices to the Senate, 375 Mass. 795, 376 N.E.2d 810 (1978); Combs v. Groener, 256 Ore. 336, 472 P.2d 281 (1970); Scot......
  • 499 B.R. 225 (Bkrtcy.D.Puerto Rico 2013), 11-06828 (ESL), In re Velez Arcay
    • United States
    • Federal Cases United States Bankruptcy Courts First Circuit
    • 27 Septiembre 2013
    ...1241 (Supreme Judicial Court of Maine 1982) (" the court will look to substance of motion" ); Lund ex rel. Wilbur v. Pratt, 308 A.2d 554, 557 (Supreme Judicial Court of Maine 1973) (" the caption is not part of the pleadings" ); Gulf Ins. Co. v. Hennings, 283 S.W.3d 381,......
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38 cases
  • 99 F.Supp.2d 1 (D.D.C. 1999), 98-3114, Federal Trade Com'n v. Mylan Laboratories, Inc.
    • United States
    • Federal Cases United States District Courts District of Columbia
    • 14 Diciembre 1999
    ...General are sufficiently broad to encompass a parens patriae action on behalf of indirect purchasers. See Lund ex rel. Wilbur v. Pratt, 308 A.2d 554, 558 (1973) ("As the chief law officer of the State, [the Maine Attorney General] may, in the absence of some express legislative restric......
  • 414 A.2d 881 (Me. 1980), Thompson's Estate, In re
    • United States
    • Maine Supreme Judicial Court of Maine
    • 16 Mayo 1980
    ...of public rights and to defend against any action that might invidiously interfere with the same. Lund ex rel. Wilbur v. Pratt, Me., 308 A.2d 554, 558 (1973). In respect to charitable trusts, the Attorney General's duty to protect the community interest in their enforcement is not only deri......
  • 402 A.2d 860 (Me. 1979), Buck v. Town of Yarmouth
    • United States
    • Maine Supreme Judicial Court of Maine
    • 21 Junio 1979
    ...the State, the preservation of order, and The protection of public rights." (Emphasis in original) Lund ex rel. Wilbur v. Pratt, Me., 308 A.2d 554, 558 (1973). The section 2053 right to petition the municipal officers to place an article in the next warrant or to call a special meeting......
  • 329 N.W.2d 575 (N.D. 1983), 10362, State ex rel. Olson v. Bakken
    • United States
    • North Dakota Supreme Court of North Dakota
    • 14 Enero 1983
    ...its members. In re McGee, 36 Cal.2d 592, 226 P.2d 1 (1951); Lee v. Lancaster, 262 So.2d 124 (La.App.1972); Lund ex rel. Wilbur v. Pratt, 308 A.2d 554 (Me.1973); Opinion of Justices to the Senate, 375 Mass. 795, 376 N.E.2d 810 (1978); Combs v. Groener, 256 Ore. 336, 472 P.2d 281 (1970); Scot......
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2 books & journal articles
  • 2007 Autumn, Pg. 46. The Attorney General's Role in Overseeing Municipal Governance.
    • United States
    • New Hampshire Bar Journal Nbr. 2007, January 2007
    • 1 Enero 2007
    ...366 N.E.2d 1262 (Mass. 1977); Minh LY v. Nystrom, 615 N.W.2d 302, 313 (Minn. 2000); Attorney General, ex rel. Wilbur, 308 A.2d 554, 557-58 (Me. 1973); Attorney General v. Hodges, 562 S.E.2d 623, 239-40 (S.C. 2002); Attorney General v. Paxton, 516 S.W.2d 865, 86......
  • Could terrorists derail a presidential election?
    • United States
    • Fordham Urban Law Journal Vol. 32 Nbr. 3, May 2005
    • 1 Mayo 2005
    ...(30.) Id. (31.) Id. (32.) Id. (33.) Id. at 308. Quo warranto proceedings are now abolished in Maine. See Lund ex rel. Wilbur v. Pratt, 308 A.2d 554, 558 n.1 (Me. 1973). (34.) See Marcotte, 89 A.2d at 311-12. There is support for this holding in the case law of other states. See generally St......