Cole v. Cole

• Decision Date: 14 November 1914
• Parties: COLE v. COLE.
• Court: Maine Supreme Court

92 A. 174

112 Me. 315

COLE

v. COLE.

Supreme Judicial Court of Maine.

Nov. 14, 1914.

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

Libel for divorce by Marshall G. Cole against Lillian Cole. Exceptions by the libelee were adjudged to be frivolous, and ordered to be transmitted at once to the Chief Justice of the Supreme Judicial Court, to be argued in writing on both sides within 30 days thereafter. Certificate discharged.

Argued before SAVAGE, C. J., and SPEAR, CORNISH, BIRD, HALEY, and PHILBROOK, JJ.

Andrews & Nelson, of Augusta, for plaintiff.

Connellan & Connellan, of Portland, for defendant.

SAVAGE, C. J. This cause is a libel for divorce pending in the superior court for the county of Kennebec. In the course of the proceedings, exceptions were taken by the libelee, which were adjudged to be frivolous and intended for delay, and which were ordered to be transmitted at once to the Chief Justice of the Supreme Judicial Court, to be argued in writing on both sides within 30 days thereafter. The regularity of this proceeding is challenged.

The taking and allowance of exceptions and their certification to the law court, or to the Chief Justice thereof, are wholly matters of statutory regulation. But for the statute there would be no right of exception and no law court. The law court has jurisdiction only as conferred by statute. Stenographer Cases, 100 Me. 271, 61 Atl. 782. The law court has no jurisdiction, except in cases brought before it in the manner provided by statute.

It is not clear under what provision of statute the justice of the superior court assumed to act in certifying the exceptions to the Chief Justice of this court and ordering them to be argued in writing within a specified time. Some of the language used in the certificate seems to indicate that the justice had in mind section 55 of chapter 79 of the Revised Statutes, which provides for the certification to the Chief Justice of exceptions adjudged to be frivolous and intended for delay. But section 55 relates, in civil cases, only to the procedure in the supreme judicial court. The distinction is marked in the statute, for it is declared that the section is to apply "to exceptions filed in any criminal proceedings in either of the superior courts." The implication is that it does not apply in other cases. This is not a criminal proceeding.

The procedure relating to exceptions in the superior courts differs from that in the Supreme Judicial Court in several particulars. One noticeable difference is that in the superior courts, notwithstanding the filing of exceptions, in all cases, the case proceeds to trial as if no exceptions had been taken, until the case is in such condition that the overruling of the exceptions will finally dispose of it (R. S. c. 79, § 85), while in the Supreme Judicial Court that procedure is ordered only when exceptions are taken to the overruling of a dilatory...