Clark v. Clark

• Decision Date: 05 February 1914
• Citation: 111 Me. 416,89 A. 454
• Parties: CLARK et al. v. CLARK.
• Court: Maine Supreme Court

89 A. 454

111 Me. 416

CLARK et al.

v. CLARK.

Supreme Judicial Court of Maine.

Feb. 5, 1914.

Exceptions from Supreme Judicial Court, Washington County, at Law.

Action by Lewis D. Clark and others against Andrew Clark. On motion a rule of reference was recalled, and the order of reference stricken off, and plaintiffs bring exceptions. Exceptions overruled.

Argued before SAVAGE, C. J., and SPEAR, and PHILBROOK, JJ.

J. F. Lynch, of Machias, and H. H. Gray, of Milbridge, for plaintiffs.

W. R. Pattengall, of Waterville, and A. D. McFaul, of Machias, for defendant.

PHILBROOK, J. This is a real action, entered at the January term, 1912, of the Supreme Judicial Court sitting at Machias, and at the return term, under rule of court, referred to three arbitrators. With it was referred to the same abitrators an equity suit involving matters of interest to the same parties. The docket entries made at the October term, 1912, of said court provided that the report of the referees was to be filed in vacation as of that term. According to the statement of the case made in the bill of exceptions, the report, so far as it related to the equity suit, was filed January 9, 1913, and with that report the referees filed a memorandum, in which they declared that they deemed it Inexpedient to decide the questions presented in this real action until the probate of a certain instrument, purporting to be the last will and testament of Lewis D. Clark, had been determined.

At the term of court held in October, 1913, on motion of defendant, the rule of reference was recalled, and the order of reference stricken off. To this action of the Presiding Justice, the plaintiff excepted, and his exceptions were duly allowed and certified. The issue before this court, raised by the bill of exceptions, is one of practice and procedure.

The plaintiff presents no authorities in support of his contention that the Presiding Justice erred in the court below, nor has our attention been called to any instance where this court has been called upon to decide the precise issue now presented. It is universally held that, before an award is made, any submission to referees, not by rule of court, may be revoked by any party to the submission, but otherwise if the submission is by rule of court. Gregory v. Pike, 94 Me. 27, 46 Atl. 793. Such has been the rule in this state since the very beginning of our judicial system. Cumberland v. North Yarmouth, 4 Me. 459. The submission of a cause by rule of ...