Bubar v. Sinclair
| Decision Date | 12 February 1951 |
| Citation | 146 Me. 155,79 A.2d 165 |
| Parties | BUBAR v. SINCLAIR. |
| Court | Maine Supreme Court |
George M. Davis, Skowhegan, for plaintiff.
William F. Jude, Newport, for defendant.
Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.
This is a petition, or motion, to correct an alleged error in a Superior Court record. The petition was denied, and exceptions taken to certain rulings. The exceptions are sustained.
The original action of trover for alleged conversion of pulpwood was tried in the Superior Court for Somerset County at the January term, 1950. A verdict was rendered by the jury in favor of the plaintiff. The defendant then filed a general motion for new trial intended for the Law Court, as he claims, and as the bill of exceptions states. The motion was handed to the presiding justice for the purpose of obtaining an extension of time for filing the transcript of evidence, as provided by Rule of Court. Rule 17, 129 Me. 509. The justice verbally granted an extension until the first of March, and then erroneously made, as the defendant claims, on the motion for new trial, the memorandum This notation was signed by the justice presiding. The transcript of evidence was filed February 19, 1950. After filing the evidence and after learning of the docket entry, which was made by the Clerk of the Court from the notation, the defendant at the following term, in May 1950, filed this petition with the justice, who was then presiding, asking for a correction of the error made at the preceding January term. This pending petition (or motion) asks that a new and corrected entry be made as follows: This petition was denied and these pending exceptions taken. There was evidently no extended hearing on this petition for a correction, because the only evidence in the record is the petition itself, with an affidavit of the defendant's attorney certifying to the truth of the facts.
The bill of exceptions, now under consideration and allowed by the presiding justice as true, states that the defendant made a motion for new trial which was intended for the Supreme Judicial Court sitting as a Law Court; that the motion for new trial was presented to the presiding justice 'for the sole purpose of having the justice endorse thereon an extension of time for filing the transcript of evidence as provided by rules of court.' * * * 'Whereupon, the justice verbally granted an extension of time until the first day of March A.D. 1950' and then erroneously made the notation
The justice presiding at the May term certifies to the truth of the statements and contentions in the pending bill of exceptions, Revised Statutes 1944, Chapter 94, Section 14; Bradford v. Davis, 143 Me. 124, 56 A.2d 68; Field v. Gellerson, 80 Me. 270, 14 A. 70, and for the purposes of this decision the Law Court is bound by the facts as so certified.
The motion for new trial filed at the January term was intended as a motion to the Law Court. It was presented to the presiding justice for one purpose only, viz: to extend and fix the time for filing the evidence under the rule. He orally extended the time for filing the evidence to March first. It was not intended that the presiding justice should act upon the motion for new trial. The presiding justice erroneously acted on the motion for new trial, and wrote on the motion itself that it was denied and that exceptions were to be filed by March first.
The denial of motion for new trial by the presiding justice (when the motion is intended for him) is not exceptionable. See opinion in Carroll v. Carroll, 143 Me. ----, 66 A.2d 809, in reference to the practice and to the form of motion for new trial, and the case of Bodwell-Leighton Co. v. Coffin & Wimple, 143 Me. ----, 69 A.2d 567, holding that exceptions do not lie to denial of motion for new trial by presiding justice. See, also, Revised Statutes 1944, Chapter 100, Section 60.
Five exceptions were taken at the hearing on this motion (or Petition) to correct the alleged error, but only the first two exceptions need to be considered. The first ruling to which exception was taken was to the effect that the Superior Court...
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Allen v. Cole Realty, Inc.
...had terminated, however, the parties were out of Court and the power of the Court over such valid judgment was ended. Bubar v. Sinclair, 146 Me. 155, 79 A.2d 165 (1951); Shepherd v. Rand, 48 Me. 244 (1860). After expiration of the term at which a valid final judgment had been entered in a c......
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Cousins v. Hooper
...and the power of the court over the case and the parties ceased, except for the subsequent enforcement of its judgment. Bubar v. Sinclair, 146 Me. 155, 79 A.2d 165 (1951); Davis v. Cass, 127 Me. 167, 142 A. 377 (1928); Myers v. Levenseller, 117 Me. 80, 102 A. 776 (1918); Shepherd v. Rand, 4......
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Willette v. Umhoeffer
...to strike the final judgment which he received by default and cites Davis v. Cass, 127 Me. 167, 142 A. 377 (1928), and Bubar v. Sinclair, 146 Me. 155, 79 A.2d 165 (1951) which hold that the power of the Court ceases and the parties are out of Court when a valid and final judgment disposing ......