Dupont v. Labbe

• Decision Date: 07 July 1952
• Citation: 89 A.2d 741,148 Me. 102
• Parties: DUPONT v. LABBE et al.
• Court: Maine Supreme Court

Page 741

89 A.2d 741

148 Me. 102

DUPONT v. LABBE et al.

Supreme Judicial Court of Maine.

July 7, 1952.

Daniel E. Crowley, Biddeford, for plaintiffs.

Hilary F. Mahaney, Biddeford, for defendant.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, and WILLIAMSON, JJ.

WILLIAMSON, Justice.

Exceptions to the granting of a review of an action in which the petitioner was defaulted on his failure to enter an appearance are overruled.

The petition is based upon R.S. Ch. 110, Sec. 1, Clause VII. The applicable law is found in Donnell v. Hodsdon, 102 Me. 420, at page 422, 67 A. 143, at page 144, as follows:

'Under clause VII, upon which this petition is based, the petitioner is not entitled to a review unless he proves to the satisfaction of the court at nisi prius three propositions: (1) That justice has not been done; (2) that the consequent injustice was through fraud, accident, mistake, or misfortune; and (3) that a further hearing would be just and equitable. If the presiding justice is satisfied of all these and grants the petition or is not satisfied of some one of them and denies the petition, his decision is final and not subject to review upon exceptions.'

Inhabitants of Town of Thomaston v. Starrett, 128 Me. 328, 147 A. 427; Jason v. Goddard, 129 Me. 483, 149 A. 622; Thompson v. American Agr. Chemical Co., 134 Me. 61, 181 A. 829; Enoch C. Richards Co. v. Libby, 140 Me. 38, 33 A.2d 537.

It is familiar law that a petition for review is addressed to the discretion of the court. Summit Thread Co. v. Corthell, 132 Me. 336, 171 A. 254, and cases cited cupra.

In passing upon the decision of the presiding justice we bear in mind the rule stated by Justice, later Chief Justice, Emery in Goodwin v. Prime, 92 Me. 355, at page 362, 42 A. 785, at page 787, as follows:

'The petition, therefore, was addressed to the judicial discretion of the justice of the supreme court of probate who should happen to hear it. The law court cannot substitute its discretion for his. When the determination of any questions rests in the judicial discretion of a court, no other court can dictate how that discretion shall be exercised, nor what decree shall be made under it. There are in such cases no established legal principles or rules by which the law court can measure the action of the sitting justice unless, indeed, he has plainly and unmistakably done an injustice so apparent as to be instantly visible without argument.'

The law has also been well stated by Justice, later Chief Justice, Sturgis in Bourisk v. Mohican Co., 133 Me. 207, at page 210, 175 A. 345, at page 346, as follows:

'And it is well settled that judicial discretion must be exercised soundly according to the well-established rules of practice and procedure, a discretion guided by the law so as to work out substantial equity and justice. It is magisterial, not personal discretion. When some palpable error has been committed or an apparent injustice has been done, the ruling is reviewable on exceptions. Charlesworth v. American Express Company, 117 Me. 219, 103 A. 358; Fournier (Hutchins) v. Great Atlantic and Pacific Tea Company, 128 Me. 393, 148 A. 147. It is when judicial discretion is exercised in accordance with this rule that it is final and conclusive. Chasse v. Soucier, 118 Me. 62, 63, 105 A. 853.'

See also American Oil Co. v. Carlisle, 144 Me. 1, 63 A.2d 676, and Sard v. Sard, 147 Me. 46, at page 53, 83 A.2d 286.

The first error of law of which the respondents complain is without merit. At the outset of the hearing and before the taking of testimony the respondents requested the presiding justice to rule that under the statute the petitioner must prove substantially what is stated in the quotation above from the Donnell case.

The justice declined to specify anything at that time. There was no reason for him then to rule. Error comes not in failure to state the law before hearing, but in failure to apply the governing principles of law in the course of hearing and decision.

The second objection in the bill of exceptions reads:

'The Judge heard and ruled only on the accident and mistake and found for the petitioner over the objections of the respondents and the respondents duly excepted thereto.'

The record, however, shows that the justice considered the remaining statutory elements in reaching his decision. The record was made a part of the bill of exceptions and accordingly controls the bill in so far as it differs therefrom. Tower v. Haslam, 84 Me. 86, 24 A. 587; State of Maine v. Mitchell, 144 Me. 320, 68 A.2d 387.

In the third objection the respondents claim that from the evidence 'that one and only one conclusion could be reached from those facts and that is that the petitioner was properly served and only through the petitioner's own negligence and lack of due diligence was the...