Gilbert v. Cushman

• Decision Date: 20 August 1915
• Citation: 95 A. 201
• Parties: GILBERT v. CUSHMAN.
• Court: Maine Supreme Court

95 A. 201

GILBERT

v. CUSHMAN.

Supreme Judicial Court of Maine.

Aug. 20, 1915.

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

Action by George W. Gilbert against Frank Cushman. There was a judgment for plaintiff, and defendant brings exceptions. Exceptions overruled.

Argued before SAVAGE, C. J., and SPEAR, KING, BIRD, HALEY, and HANSON, JJ.

Gerry L. Brooks, of Portland, for plaintiff. Rodney I. Thompson, of Rockland, for defendant.

BIRD, J. In this case are presented for consideration the exceptions of defendant to the overruling of his demurrer to plaintiff's declaration. At the argument of the case, it was stated by counsel for plaintiff and admitted by defendant's counsel that, upon the overruling of the demurrer, the case proceeded to a trial upon the merits which resulted in a verdict for the plaintiff. We are of the opinion that the exceptions cannot be considered. The record consists of the declaration and bill of exceptions. The day of the allowance of the latter does not appear, but we think it can be safely assumed that no bill of exceptions was filed and allowed until after defendant's failure to secure a verdict Nor is it to be conceived that the cause was submitted to the jury without the filing and joinder of the general issue and leave obtained by defendant to plead anew. This is not the case of a dilatory plea overruled with exceptions where the cause proceeds to a close of the trial and then comes forward (R. S. c. 79, § 56), but is controlled by R. S. c. 84, § 35; Id. c. 79, § 46; Copeland v. Hewett, 93 Me. 554, 557, 45 Atl. 824. See, also, Furbish v. Robertson, 67 Me. 35, 38; Mayberry v. Brackett, 72 Me. 102. Under the circumstances of this case, the defendant must be regarded as having waived his exceptions. True v. Plumley, 36 Me. 466, 477.

The exceptions must therefore be overruled.

Exceptions overruled.