Graff Am v. Cobb

• Decision Date: 08 December 1903
• Parties: GRAFF AM v. COBB et al.
• Court: Maine Supreme Court

56 A. 645

98 Me. 200

GRAFF AM

v. COBB et al.

Supreme Judicial Court of Maine.

Dec. 8, 1903.

(Official.)

Petition by Daniel S. Graffam against Fannie E. Cobb and others to establish exceptions. Dismissed.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and POWERS, JJ.

Daniel S. Graffam, pro se.

WHITEHOUSE, J. This was a petition presented to this court, "sitting as a law court," representing that the exceptions alleged by the petitioner in two cases in the court below were disallowed by the presiding judge, and asking that the "exceptions may be allowed and a hearing had" by this court.

Section 1, c. 174, p. 194, Laws 1893 (Rev. St. 1903, c. 77, 8 55), is as follows: "If the justice disallows or fails to sign and return the exceptions, or alters any statement therein, and either party is aggrieved, the truth of the exceptions presented may be established before the Supreme Judicial Court sitting as a court of law, upon petition setting forth the grievance, and thereupon, the truth thereof being established, the exceptions shall be heard, and the same proceedings had as if they had been duly signed and brought up to said court with the petition. The Supreme Judicial Court shall make and promulgate rules for settling the truth of exceptions alleged and not allowed,"

In this enactment our Legislature adopted verbatim section 11, c. 115, Gen. St. Mass. 1860, which now appears in section 110, c. 173, Rev. Laws Mass. 1902. In that state the rule established by the Supreme Court respecting the procedure under this statute requires the petition to set forth all the material facts relating to the exceptions, and to be verified by affidavit; it also requires a copy of the petition to be delivered to the adverse party 10 days at least before the term at which the petition is entered. Phillips v. Hoyle, 4 Gray, 570, and note. But the affidavit required by this rule to verify a petition to establish exceptions is not accepted as evidence of the truth of the exceptions. It is the practice in that state, however, upon motion of either party, to appoint a commissioner to take the depositions of such witnesses as may be produced by either party. Com. v. Marshall, 15 Gray, 202.

Since the enactment of this statute in our state, only two petitions based upon it have been presented to this court, and thus far the court has omitted to "make and promulgate" any rule for "settling the truth of exceptions alleged and not allowed." But, as observed by the court in Hadley v. Watson, 143 Mass. 27, 28, 9 N. E. 806: "The right to prove exceptions has always been regarded as strictissimi juris. The purpose of a petition to prove exceptions is to contradict and control the statement of a Judge made under his oath of office and his official responsibility. It is fit that, before this court entertains such a petition, some person with a knowledge of the fact should make oath to their truth."

In the case at bar, neither the petition nor the accompanying declaration is verified by affidavit. It is to be observed, however, that the petitioner does not claim to be aggrieved by reason of any misrecital of facts, or any alteration of statements found in a bill of exceptions that was actually allowed. His complaint is that each of the two bills of exceptions prepared by him was disallowed as a whole by the presiding judge. Neither of the bills contained any statement of a material fact which could become the subject of controversy in this case, with a possible exception to be hereafter considered. The obvious question in each instance was whether the petitioner was entitled to any exceptions at all to the ruling given. In view of this fact, and of the absence of any provision of statute or rule of court expressly requiring the petition to be upon oath, the entire case has received from this court the same careful examination that it would have received if the petition and accompanying declaration had been verified by affidavit.

At the October term, 1902, of the Supreme Judicial Court in Cumberland county, this petitioner, Daniel S. Graffam, entered two petitions to the Supreme Court of Probate under Rev. St 1903, c. 63, § 33, for leave to enter appeals from the decrees made by the judge of probate for that county in the two cases respectively of Graffam, Petitioner, against Ray et al., and Graffam, Petitioner, against Cobb, the 20 days allowed for taking such appeals by section 31 having expired. Section 33 provides that: "If any such person from accident, mistake, defect of notice, or otherwise without fault on his part, omits to claim or prosecute his appeal as aforesaid, the Supreme Court, if justice requires a revision, may, upon reasonable terms, allow an appeal to be entered and prosecuted with the same effect, as if it had been seasonably done; and said petition shall be heard at the next term after the filing thereof." In Graffam, Petitioner, against Ray et al., the decree sought to be reviewed related to the enforcement of an order of the probate court for the production of books and documents alleged to be material in the discovery of the truth concerning the estate of Ellas S. Dodge, of which the petitioner was administrator de bonis non. In Graffam, Petitioner, against Cobb, the decree complained of required the petitioner to account for a balance found to be due from him as guardian of Fanny E. Cobb.

On both of these petitions notice was duly ordered at the October term of the Supreme Court, and made returnable at the following January term. The only evidence which this court can properly consider respecting the rulings of the court complained of at the January term is found in the copies of the docket entries made at the January term, and the admissions of the petitioner contained in the several petitions in the case signed by him. Even if the general allegation in the petition of a fraudulent conspiracy against the petitioner should be deemed material, and could properly be considered without a more specific statement of the grounds upon which the charge is based, there is no evidence before this court to substantiate the charge, and no motion was made for the appointment of a commissioner to take testimony for that purpose. Fraud is never to be presumed, but must be clearly proved by competent testimony.

Having recourse, then, to the docket entries in Graffam, Adm'r, Pet'r, against Ray et al., January term, 1903, it appears that on the third day of the term the case was continued until the next April term; that on the fifth day the petitioner filed exceptions to the ruling, whereby the case was continued, making reference to the provision of the statute above quoted declaring that "the petition shall be heard at the next term after filing...