Goodwin v. Small

• Decision Date: 22 April 1899
• Parties: GOODWIN v. SMALL et al.
• Court: Maine Supreme Court

43 A. 507

92 Me. 588

GOODWIN

v. SMALL et al.

Supreme Judicial Court of Maine.

April 22, 1899.

(Official.)

Exceptions from supreme judicial court, York county.

Action by Asenath J. Goodwin against James W. Small and others. Bills certified to the chief justice, under Rev. St. c. 77, § 43. Exceptions overruled.

Argued before PETERS, C. J., and EMERY, HASKELL, WHITEHOUSE, WISWELL, and STROUT, JJ.

J. O. Bradbury, for plaintiff.

Frank M. Higgins, for defendants.

PETERS, C. J. The facts agreed are as follows: At the January term, 1898, of court in York county, the plaintiff recovered a verdict for $3,377.44, and at the same term a motion was filed by the defendant for a new trial. There was an entry on the docket that a copy of the evidence should be filed by April 1, 1898, but none had been filed as late as the January sitting of the court in 1899. Whereupon at that term, on the second day thereof, the plaintiff moved that the entry of law on report be stricken from the docket, and judgment be entered upon the verdict recovered a year before that time. This order was made by the justice sitting, the defendant excepting to such order.

The counsel for defense contends that after a motion for new trial has been entered on the docket, and a time fixed for filing a report of the evidence, the case then becomes transferred to the law court, and can only be disposed of in that tribunal. But we think the entry allowing time for filing the report of evidence was conditioned upon a performance of that requirement within the time prescribed. Rule 17, 72 Me. 572, is expressly to that effect, for it provides that for such neglect "the motion may be regarded as withdrawn and the clerk be directed to enter judgment on the verdict." The argument of the defendant is that the trial court in such circumstances loses its control over the case in the same way that a municipal or probate court does when a case is carried from such court to a court above by appeal. But the comparison does not hold good, as in those cases the appeal usually transfers the jurisdiction from the lower to the appellate court, while in this case the effect is only a transference to another branch of the same court and for limited purposes.

But the defendant relies, in further support of his position, upon the fact that, at the law Court for the Western district at its July term, 1898, the case was set down to be argued in writing, in 60, 30, and 30 days; contending that this act was a...