Hearne v. Brown
| Decision Date | 18 December 1877 |
| Citation | 67 Me. 156 |
| Parties | GEORGE HEARNE v. DANIEL BROWN. |
| Court | Maine Supreme Court |
ON EXCEPTIONS from the superior court.
ASSUMPSIT on an account annexed, to which an account in set-off was seasonably filed.
The writ was dated September 26, 1870, and was entered at the October term following.
At the January term, 1877, the counsel for the defendant filed a motion to dismiss this action because all matters involved in this suit and account in set-off had been referred to certain referees and in support thereof introduced the following agreement to refer:
" State of Maine, Cumberland, ss. Supreme Judicial Court.
George Hearne vs. Daniel Brown.
In the above entitled cause, commenced by writ dated September 26 A. D. 1870, and returnable to said court on the second Tuesday of October, A. D. 1870, and now pending therein, the parties hereby agree to refer all matters, charges, accounts and claims involved therein, and for which said action was brought, as also all matters, charges, accounts and claims involved in the account in off-set filed in said cause to Samuel L. Carleton and Melvin P. Frank, as referees and arbitrators, who are to decide the same by law and equity and they are to be sole judges of the law and facts, giving to them also power to choose a third person in case they should fail to agree; the three, or a majority of them, to have the same authority hereby given to said Carleton and Frank. The report and decision of said referees is to be final, and ?? to be reported to court and judgment entered thereon, which judgment is to be final, and no exceptions appeals or writs of error, are to be taken to the same or to any of the proceedings. March 15, 1871. (Signed) George Hearne. (Seal). Daniel Brown. (Seal)."
On the hearing upon the motion at the April term following, the plaintiff offered, subject to objection, the written resignation of M. P. Frank, one of the referees, dated March 27, 1877, and the written revocation of the reference by the plaintiff, dated March 30, 1877.
Upon these facts, the presiding justice ruled pro forma, as matter of law, that the reference and such action as was taken by the referees operated as a discontinuance, and dismissed the action, to which ruling the plaintiff alleged exceptions.
J. H. Drummond & J. O. Winship, with P. J. Larrabee, for the plaintiff.
N. Webb with D. W. Fessenden, for the defendant.
The agreement of 15th of March, 1871, is entitled as of a term of this court. It states the time when the writ was returnable and when it was entered; it recognizes the suit as " now pending; " it refers " all matters, charges, accounts and claims" involved in the suit for which this action was brought and " all matters, charges, accounts and claims" involved in the account in offset to two referees therein named, with power to choose a third in case they fail to agree, the three, or a majority, to have all the powers given to the referees named; and it provides that the decision of the referees is to be final and is to be reported to the court and judgment is to be entered thereon, which judgment is to be final.
There is no mistaking the intention of the parties. The action was to remain on the docket until the award of the...
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Lebel v. Cyr.
...a reference of a pending suit at common law or into a statutory submission, the cause thus referred is thereby discontinued.” Hearne v. Brown, 67 Me. 156, 158. But there is no such discontinuance where there is to be “a judgment on the report, or a cognovit, is to follow.” Ex parte Wright, ......
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Magaziner v. Consumers' Baking Co.
...the parties of the demands claimed in the action did not oust the court of its jurisdiction. Emerson v. Wadman, 122 Mass. 384. See Hearne v. Brown, 67 Me. 156. Although the amount of the judgment was the same as that found by the arbitrators to be due the plaintiff, it does not appear that ......
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Nelson v. Reinhart
...of the suit. Callanan v. Port Huron Ry. Co., 61 Mich. 15, 27 N.W. 718; Wilson v. Williams, 66 Barb. (N. Y.) 209. In the case of Hearne v. Brown, 67 Me. 156, it was held that submission to arbitration would not be treated as a discontinuance of a pending suit where by necessary implication t......
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Bruner v. C. Brewer & Co.
...the docket and that judgment thereon is to be entered in accordance with the award of the referees, there is no discontinuance.” Hearne v. Brown, 67 Me. 156, 158. See also 5 Ency. L. & P. 257; Lary v. Goodnow, 48 N. H. 170, 175, and other cases cited above. Our statute on the subject does n......