Appeal of Backus
| Decision Date | 01 February 1888 |
| Citation | 12 A. 636,80 Me. 17 |
| Parties | Appeal of BACKUS et al. |
| Court | Maine Supreme Court |
On exceptions from supreme judicial court, Franklin county.
Probate appeal, involving the validity of a will. The appellees moved for a change of venue, under Rev. St. c. 82, § 14. This motion was denied by the presiding judge as a matter of law, and the appellees alleged exceptions.
S. C. Strout, H. L. Whitcomb, and Holman & Belcher, for appellants. Symonds & Libby and S. Clifford Belcher, for Oren B. Cheney.
This is a probate appeal, wherein the validity of a will is denied, because of the incompetency of the testator, and because the same was procured by undue influence. The appellees moved a change of venue, because of local prejudice so great as to prevent a fair and impartial trial of the issues involved before a jury of the vicinity. The presiding justice ruled, as matter of law, that the court had no power to grant the motion; to which ruling the appellees have exception.
Rev. St. c. 63, § 23, makes the supreme judicial court the supreme court of probate; and section 28 provides that the supreme court of probate "may reverse or affirm, in whole or in part, the sentence or act" of the probate court "appealed from, pass such decree thereon as the judge of probate ought to have passed, remit the case to the probate court for further proceedings, or take any order therein that law and justice require; and if, upon the hearing, any question of fact occurs proper for a trial by jury, an issue may be formed [framed] for that purpose, under the direction of the court, and so tried." Questions of sanity and of undue influence, arising upon the probate of wills, are usually submitted to a jury for determination. This practice has been so common and uniform as to become almost a law of the court. When such issues are framed for a jury trial, "all incidents of such trial follow." Carvill v. Carvill, 73 Me. 136. The cause then assumes the character of an action at law. The procedure is according to the course of the common law, and is governed by legal rules throughout. Rev. St. c. 82, § 14, provides that "any judge of the supreme judicial court, while holding a nisi prius term, on motion of either party, shall, for cause shown, order the transfer of any civil action or criminal case pending in said court to the docket thereof in any other county for trial." No good reason is shown why a probate appeal, when it has assumed the character of,...
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Appeal of Martin
...an opportunity for the correction of errors, with a minimum of expense and delay. The cause assumes, says Judge Haskell, in Backus v. Cheney, 80 Me. 17, 12 A. 636, when issues are framed for a jury trial, the character of an action at law. The procedure is according to the course of the com......
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State v. Superior Court of Spokane County
... ... threshold of the proceeding the respondent raises the ... objection that the relator has an adequate remedy by appeal, ... and that mandamus will not lie. If the contention of the ... relator is correct, viz., that the superior court of Spokane ... less.' See, also, Townshend v. Townshend, 9 Gill ... (Md.) 506; Backus v. Cheney, 80 Me. 17, 12 A ... 636; Treasurer v. Wygall, 46 Tex. 447; Kittridge ... v. Circuit Judge, 80 Mich. 200, 44 N.W. 1051 ... ...
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Stone v. Byars
...Under a statute similar to ours, the Supreme Court of Maine held that the parties had the right to a change of venue. Backus v. Cheney, 80 Me. 17, 12 Atl. 636. The order changing the venue vested jurisdiction in the district court of Colorado county. The jurisdiction of the district court o......
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Appeal of Thompson
...court have several times said that this is proper practice. Carvill v. Carvill, 73 Me. 136; McKenney v. Alvord, 73 Me. 221; Backus v. Cheney, 80 Me. 17, 12 Atl. 636. We are of the opinion that these cases are not based upon the provision, express or implied, of any statute. The law court is......