Borneman v. Milliken

• Decision Date: 06 May 1919
• Citation: 106 A. 345
• Parties: BORNEMAN et al. v. MILLIKEN et al.
• Court: Maine Supreme Court

106 A. 345

BORNEMAN et al.

v. MILLIKEN et al.

Supreme Judicial Court of Maine.

May 6, 1919.

Exceptions from Supreme Judicial Court, Lincoln County.

Action by Elden O. Borneman and others against H. A. G. Milliken and others. Verdict for defendants, and plaintiffs except. Motion to dismiss bill of exceptions overruled, and exception sustained.

Argued before SPEAR, HANSON, PHILBROOK, WILSON, and DEASY, JJ.

M. A. Johnson, of Rockland, for plaintiffs.

A. S. Littlefield, of Rockland, for defendants.

WILSON, J. This case as now before this court presents two questions: First, whether the bill of exceptions of the plaintiffs to the ruling of the presiding justice directing a verdict for the defendants is properly before this court; and, second, whether it should be sustained.

The action was first tried at the April term, 1915, and resulted in a verdict for the plaintiffs against certain of the defendants. It was then taken to this court on motion for a new trial on the usual grounds, and a new trial was granted. 116 Me. 76, 100 Atl. 5.

A new trial was begun on the first day of the October term, 1917.

At the close of the second trial the presiding justice upon the ground that he felt his hands bound by the previous decision of this court above referred to, pro forma, as it were, ordered a verdict for the defendants.

To this ruling the plaintiffs seasonably excepted, and before the close of the term, and presumably with the consent of all parties, to comply with the statute, section 55, c. 82, R. S., an entry was made upon the docket of the court, "Exceptions filed and allowed." The effect of this entry under our practice and the decisions of this court must be construed to be that the presentation of a bill of exceptions after the close of the term shall by consent of parties be considered as presented as of the date of the docket entry. We think, therefore, the presentation of the bill of exceptions to the presiding justice must be held in this case as having been duly made on the 8th day of the October term, 1917. Dunn v. Motor Co., 92 Me. 165, 42 Atl. 389; Field v. Gellerson, 80 Me. 270, 14 Atl. 70.

When a bill of exceptions has been duly presented for allowance, but before allowance the justice presiding at the trial becomes incapacitated for allowing them for any of the reasons assigned in section 56, c. 82, R. S., any justice may, upon motion and hearing, allow them. The bill of exceptions of the plaintiffs having been duly presented—and it was in fact presented to the justice presiding, though not allowed by him, owing to his death—it was, we think, properly allowed by the Chief Justice under section 56 of chapter 82 above referred to, and is now before this court for consideration.

After consideration of the evidence now in the case we must sustain the exception. The presiding justice at nisi prius evidently viewed the findings of fact by this court in the opinion handed down in the former case (116 Me. 76, 100 Atl. 5) as conclusive and binding. The finding as to the town line between Waldoboro and Warren, at least, so far as the same forms the county line between Lincoln and Knox counties may be conclusive (State v. Thompson, 85 Me. 194, 27 Atl. 97), but unless the facts fall under the head of those of which the court takes judicial notice, no findings of fact by the law court based upon evidence in a case in which it sets aside the verdict can be considered res adjudicata. Case v. Hoffman, 100 Wis. 314, 72 N. W. 390, 74 N. W. 220, 75 N. W. 945, 44 L. R. A. 728. No issue of fact can be considered settled in a legal proceeding until a judgment is rendered thereon. Lord v. Chadbourne, 42 Me. 429, 443, 66 Am. Dec....