Carey v. Bourque-Lanigan Post No. 5, The American Legion

• Decision Date: 06 January 1954
• Docket Number: BOURQUE-LANIGAN
• Citation: 102 A.2d 860,149 Me. 390
• Parties: CAREY v.POST NO. 5, THE AMERICAN LEGION et al.
• Court: Maine Supreme Court

Page 860

102 A.2d 860

149 Me. 390

CAREY v. BOURQUE-LANIGAN POST NO. 5, THE AMERICAN LEGION et al.

Supreme Judicial Court of Maine.

Jan. 6, 1954.

Jerome G. Daviau, Waterville, for Peter P. Carey.

Thomas N. Weeks, Waterville, for Bourque-Lanigan Post No. 5, The American Legion Bldg. Corp.

Eaton & Eaton, Waterville, for Post and Corp.

Cyril Joly, Jr., Waterville, for Post.

Before MERRILL, C. J., and THAXTER, FELLOWS and WEBBER, JJ.

WEBBER, Justice.

This matter comes up on plaintiff's exceptions to the direction of a verdict for defendants. The issue here presented is, 'Were these exceptions regularly and properly allowed below, or should they be dismissed?'

At a regular April Term of the Superior Court below, the presiding justice directed a verdict for the defendants. Seasonably thereafter during the term, a docket entry was made of 'Exceptions filed and allowed.' On the same day the presiding justice fixed the time for filing an extended bill of exceptions, and an appropriate docket entry was recorded, 'Extended Bill of Exceptions to be filed on or before return day of June Term, 1953.' A transcript of the evidence was seasonably filed on May 29, 1953. On the first Tuesday of June, 1953, the return day for the June Term, no extended bill had been filed and no docket entry had been made disclosing any further extension of the time for such filing. The presiding justice at the June Term was not the justice who presided at the April Term. On the fifth day of the June Term, the justice then presiding ordered the time further extended for filing bill and the following docket entry was made, 'By order of the Court extended Bill of Exceptions to be filed on or before July 1, 1953.' Ten days later the extended bill now before us was filed and allowed without qualification by the justice who originally presided at the April Term. The extended bill of exceptions was signed by counsel for the defendants as 'Seen and agreed to as to form only.'

R.S.1944, Chapter 94, § 14 controls and the applicable portions may be paraphrased as follows. When a party deems himself aggrieved by any opinions, directions or judgments of the presiding justice during a term of court, he may present written exceptions thereto during the thirty days of the term next following the action complained of, excepting only that if the term does not continue for thirty days, the exceptions will be received only if filed and allowed before final adjournment of the term.

Our Court in Bradford v. Davis, 143 Me. 124, 56 A.2d 68, has fully set forth the purpose of exceptions and the method of perfecting them properly. At page 127 of 143 Me., at page 70 of 56 A.2d, that opinion states:

'It is customary in practice, however, because of time necessary to prepare a formal bill, to note upon the term docket that exceptions have been 'filed and allowed.' Then if the exceptant believes that he will not have sufficient time or opportunity to write out and to prepare a complete bill of exceptions before adjournment, or if there will be an unavoidable delay due to transcription of evidence by the Court reporter, it is also the practice for the exceptant to ask the presiding justice for an extension, by making further docket entry that the completed bill may be filed on or before a certain date. In this manner the statute has been complied with, the exceptions are filed and allowed 'during the term', leaving only mechanical details for some future time.'

This procedure was the one properly followed in the case at bar. Where the usual docket entry of "Exceptions filed and allowed" is made during term time, '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.' (Emphasis supplied.) Borneman v. Milliken, 118 Me. 168, at page 169, 106 A. 345, at page 346.

It must be noted, however, that exceptions are neither completed nor finally allowed until the extended bill of exceptions has been filed and allowed by the justice who is a party to and controls it. This can be done only during the term as provided by statute (supra), unless the presiding justice, during the term and with the consent of the parties, extends the privilege to file an extended bill at a time after the term set by that justice. 'The presiding justice is not only not required to allow exceptions after the term is adjourned, but without waiver and consent he has no power to do it.' (Emphasis supplied.) Poland v. McDowell, 114 Me. 511, at page 513, 96 A. 834, at page 836.

'It is competent for the parties, with the consent of the presiding justice, to waive expressly or impliedly, these requirements. Such is not an uncommon practice.' Dunn v. Auburn Electric Motor Co., 92 Me. 165, at page 167, 42 A. 389, at page 390.

Where it was clear that there had been no waiver and consent and the certificate of allowance after the term was qualified in that respect, the bill of exceptions was deemed to be filed and allowed too late. Fish v. Baker, 74 Me. 107.

Just as waiver and consent given expressly or by implication during the term will operate to permit the presiding justice to enlarge the time for filing extended bill beyond the term, so also and only by such waiver and consent the parties may permit the same justice to further enlarge the time beyond the date originally set, when it becomes apparent to them that for good cause...