Fenn v. Fenn

• Decision Date: 13 July 1931
• Citation: 155 A. 803
• Parties: FENN v. FENN et al.
• Court: Maine Supreme Court

155 A. 803

FENN

v. FENN et al.

Supreme Judicial Court of Maine.

July 13, 1931.

Report from Supreme Judicial Court, Cumberland County, in Equity.

Action by Thomas L. Fenn against William H. Fenn and others. On report Report discharged.

Argued before PATTANGALD, C. J., and DUNN, STURGIS, BARNES, FARRINGTON, and THAXTER, JJ.

George O. Otto, of Chicago, Ill., and Frederick R. Dyer, of Portland, for plaintiff.

John F. Dana, Eugene L. Bodge, and John B. Kehoe, all of Portland, for defendants.

PER CURIAM.

This report of this cause in equity, brought to obtain a construction of the will of William H. Fenn, late of Portland, Me., deceased, must be discharged. Of the thirty-seven defendants, individual and representative, sixteen only appear, answer, and agree to this report. Twenty-one defendants failed to appear, the bill is taken pro confesso against them, and the cause reported without their agreement.

This law court has jurisdiction to determine causes in equity certified on report only when the presiding justice is of opinion, and so certifies, that a question of law is involved of sufficient importance or doubt to justify the same, and the parties agree thereto. Revised Statutes, chap. 91, § 56; Baker v. Johnson, 41 Me. 15; Whittemore v. Russell, 78 Me. 337, 5 A. 72. Defendants in default in an equity action under a decree pro confesso are still parties and have some rights. Unless all parties agree to a report of the cause in which they are joined, we think it is the duty of the sitting justice to hear the evidence and make such rules, orders, or decrees thereon as the law of the case requires. Under this procedure, any party aggrieved has the right of exception and appeal reserved to him, and the rights of all other parties are left unimpaired.

Report discharged.