Farnsworth v. Kimball

• Decision Date: 08 October 1914
• Parties: FARNSWORTH v. KIMBALL et al.
• Court: Maine Supreme Court

91 A. 954

112 Me. 238

FARNSWORTH

v. KIMBALL et al.

Supreme Judicial Court of Maine.

Oct. 8, 1914.

Report from Supreme Judicial Court, Hancock County, at Law.

Petition by Lucy A. Farnsworth for a writ of review of a former action by Samuel S. Kimball and another against George B. Dorr, in which defendants Kimball and another recovered judgment. Petition denied.

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

White & Carter, of Lewiston, and Hale & Hamlin, of Ellsworth, for petitioner. Deasy & Lynam and B. S. Clark, all of Bar Harbor, for defendants.

SAVAGE, C. J. This is a petition for a review of a real action in which the present defendants, Kimball and Coffin, were plaintiffs and one George B. Dorr was defendant, and comes before this court on report. That case was tried and went to judgment at the April term, 1913, of the Supreme Judicial Court in Hancock county. It is admitted that during the pendency of that action and before trial or judgment, the record title of Dorr, the defendant, passed to the Bar Harbor Water Company, and that the title of Kimball and Coffin, the plaintiffs, had been bought and paid for by the Bar Harbor Water Company and had been conveyed to a trustee for the benefit of that company. So that the water company at the time of the trial owned in law, or in equity, all the title of all the parties of record in the suit. It is also admitted that the suit was prosecuted to judgment by that company, at its expense; and inasmuch as it owned also the defendant's title, it is a fair inference that the same company maintained the defense. Except as the judgment might furnish the basis for ulterior proceedings against this present petitioner, it was entirely a moot case.

The Dorr title was deraigned from the warranty deed of William A. Farnsworth, the petitioner's father, and the petitioner, as she is the sole living heir of her father, and the owner of property and assets which came to her as such heir, and thus liable upon the covenants of warranty, if broken, was sufficiently vouched in to defend the original suit, but failed to do so, and is accordingly bound by that judgment, as it now stands.

It will be noticed that the petitioner was not a party of record in the original suit, and that Dorr, who was a party there, is not made a party to this proceeding. For her right to institute the proceeding, the petitioner relies upon R. S. c. 91, § 1, cl. 3, which provides that a review in civil actions may be granted "on petition of a party in interest who was not a party to the record, setting forth the fact of such interest, and upon filing a bond" and so forth. The petitioner's right to petition is not challenged, but we deem it proper to say that we think that her case fairly comes within the provision of the statute. It is probable that by strict construction the original defendant, Dorr, should have been made a party to this proceeding, but the point has not been made. And as he, as well as his former adversaries, are represented by the Bar Harbor Water Company, their grantee, which is making this defense, and makes no point of want of proper parties, we will pass the question. We merely mention the situation that it may not serve as a precedent.

It should be stated further, as preliminary to a discussion of the questions involved, that the Bar Harbor Water Company, the present defendant in interest, has commenced an action against her as heir, upon her father's covenant of warranty, and the action is now pending.

A review may be granted "where through fraud, accident, mistake or misfortune, justice has not been done." R. S. c. 91, § 1, el. 7. But the words "fraud, accident, mistake or misfortune" are not without limitation. This court said in Pickering v. Cassidy, 93 Me. 139, 44 Atl. 683, that:

"The words * * * ordinarily import something outside of the petitioner's own control, or at least something which a reasonably prudent man would not be expected to guard against or provide for. It has long been regarded as essential to public order, security, and confidence that, when parties have had their full day in court, * * * they should abide the result. * * * It cannot have been the intention of the Legislature to destroy this rule and destroy all reliance upon court judgments, by requiring or even authorizing the court to open them as often as the defeated party discovers some new evidence or argument."

Following this rule, a review is denied when it appears that the petitioner's predicament is due to his own fault and want of reasonable diligence. Mere mistakes in opinion or judgment do not bring a case within the statute.

The petitioner was seasonably vouched to defend. She then had in her possession all the evidence that she has now, for want of which, as she claims, an erroneous order of judgment was made. She showed it to her personal counsel. She furnished copies of it to the counsel defending the Dorr title. She says she was advised by her attorney that it was not necessary for her to respond to the voucher, and that the attorneys for Dorr had told her attorney that they would do all they could in defense. If we should assume that her attorney did not give her good advice, as we do not, that would not be such mistake or misfortune as the statute contemplates. The statute certainly does not mean that when a lawyer gives poor advice it is a cause for review. But the record leads us to think that disinclination to be at any expense about it was the prime reason for failing to appear and defend. Notwithstanding the advice which she says was given her, she undertook to employ a firm of Ellsworth attorneys, but, being unable to get them to name a price for which they would take care of the suit for her, she seems to have decided to let the matter go. For these reasons we might properly hold, we think, that the failure of the petitioner to act after being vouched was due to her own personal, palpable neglect, for which the statute of reviews affords no remedy. But there are reasons why we think it proper to consider the case on its merits, and we will do so. The same result will be reached either way.

The case shows that the land in question was once owned by Randall S. Clark. On January 8, 1855, he conveyed it to Charles Goodwin and George N. Severance. On the same day, Goodwin and Severance mortgaged it to Andrew H. Hall to secure the payment of three notes aggregating $2,500. The deed of conveyance and mortgage were both recorded January 12, 1855. Hall assigned the mortgage to Sarah H. Gilmore, March 20, 1858, and the assignment was recorded May 23, 1859. On May 18, 1863, J. A. Deane, by an assignment purporting to be made by him, as attorney for Sarah H. Gilmore, assigned the mortgage to Willam A. Farnsworth, Henry Morse, and Merrill Austin. The assignment was recorded the same day. No power of attorney appears of record, and none can now be found. Previously in the same month Sarah H. Gilmore gave a warranty deed to Deane, and Deane gave one to Farnsworth and his associates. The counsel for petitioner in argument speaks of these as covering the land in question. This is denied by the defendants, and the case does not show it. From the evidence and admissions in the case we think...