Bancroft & Martin, Inc. v. Local No. 340, Truck Drivers, Warehousemen & Helpers Union
| Decision Date | 02 April 1980 |
| Citation | 412 A.2d 1216 |
| Court | Maine Supreme Court |
| Parties | BANCROFT & MARTIN, INC. v. LOCAL NO. 340, TRUCK DRIVERS, WAREHOUSEMEN & HELPERS UNION, et als. |
Bernstein, Shur, Sawyer & Nelson, James H. Young, II, orally, F. Paul Frinsko, Sumner T. Bernstein, Portland, for plaintiff.
William F. Gore, orally, Portland, for defendants.
Before McKUSICK, C. J., and WERNICK, GODFREY, GLASSMAN and ROBERTS, JJ.
The defendant, Local No. 340, Truck Drivers, Warehousemen & Helpers Union, appeals pursuant to 26 M.R.S.A. § 6 from an interlocutory order of the Superior Court, Cumberland County, granting a preliminary injunction which enjoined the defendant and its members, who were on strike and picketing outside the plaintiff's place of business, from blocking access to or egress from the plaintiff's premises. The plaintiff, Bancroft & Martin, Inc., has brought a motion to dismiss the appeal. By order of the Chief Justice this motion was consolidated for argument with the merits. We dismiss the appeal.
An examination of the docket reveals that a preliminary injunction was issued and entered upon the docket on September 24, 1979. The defendant filed a notice of appeal on October 3, 1979, and on October 31 the plaintiff filed a notice of dismissal pursuant to M.R.Civ.P. 41(a)(1)(i). Jurisdiction vested in the Law Court on November 14, 1979 when the record was transmitted by the Clerk of the Superior Court to this Court and the case was marked "LAW" on the docket. See Isely v. Wilkins, Me., 253 A.2d 51, 53 (1969); M.R.Civ.P. 74A(b).
M.R.Civ.P. 41(a)(1) provides in pertinent part:
Subject to the provisions of Rule 23(c) and of any statute, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before commencement of trial of the action . . ..
The plaintiff contends that since the hearing on the application for preliminary injunction was not combined with the hearing of the action for permanent injunction as is permitted by M.R.Civ.P. 65(b)(2) the trial had not commenced and therefore it had an absolute right to voluntarily dismiss the action. The plaintiff then reasons that because the action has been dismissed the defendant has nothing from which to appeal.
In allowing a plaintiff to dismiss an action voluntarily at any time before commencement of trial, M.R.Civ.P. 41(a) is unlike the comparable federal rule. See F.R.Civ.P. 41(a). The Reporter's Notes to our rule state that its purpose was to continue the Maine practice of allowing "the plaintiff to take a voluntary nonsuit as of right at any time before the commencement of the trial." Reporter's Notes, M.R.Civ.P. 41. This was unquestionably the pre-Rules practice in this state in actions at law. See, e. g., Washburn v. Allen, 77 Me. 344, 352 (1885). The pre-Rules practice in equitable actions was somewhat different. As noted in the standard text on Maine equity practice,
(a)fter a decree whether final or interlocutory has been made by which the rights of a party defendant have been adjudicated, the plaintiff will not be allowed to dismiss his bill without the consent of the defendant, since all parties are interested in a decree. 1 R. Whitehouse, Equity Practice 546 (1915).
Whether the merger of law and equity and the promulgation of Rule 41(a) have changed this prior Maine practice with regard to dismissals in equitable actions is an issue which we...
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... ... § 57; M.R.Civ.P. 73(f); Bancroft & Martin, Inc. v. Local No. 340, Truck Drivers, arehouseman & Helpers Union, Me., 412 A.2d 1216- ... 17 (1980); ... ...
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