Hunter v. Heath

• Decision Date: 03 June 1884
• Citation: 76 Me. 219
• Parties: DAVID L. HUNTER v. FRANCIS E. HEATH and another.
• Court: Maine Supreme Court

76 Me. 219

DAVID L. HUNTER v. FRANCIS E. HEATH and another.

Supreme Judicial Court of Maine.

June 3, 1884

ON EXCEPTIONS.

This was a writ of error, and when the action came up for a hearing, the defendants filed a motion to dismiss the action.The court granted the motion and ordered the action dismissed, and the plaintiff alleged exceptions to that ruling, and made the writ and motion to dismiss a part of the exceptions.

[Writ.]

" State of Maine, Kennebec, ss.To the sheriffs of our respective [L. S.] counties, or either of their deputies Greeting.

We command you, that you make known unto Francis E. Heath of Waterville, and Augustine Crosby of Benton, county of Kennebec and State of Maine, partners under the firm name of Heath and Crosby, that they appear, if they see cause, before our Supreme Judicial Court, to be holden at Augusta, within and for our county of Kennebec, on the first Tuesday of August next, to answer to David L. Hunter of Clinton, in said county, in a plea of error, whereas the said Hunter alleges that in the process, proceeding and judgment had before the Supreme Judicial Court in and for our said county of Kennebec, at a term beginning on the first Tuesday of August 1873, said judgment having been rendered on the report of F P. Haviland, referee on a submission entered into March 17 1873, wherein the said Heath and Crosby were plaintiffs, and the said Hunter was defendant, there occurred the errors hereinafter specified, by which the present plaintiff was injured and for which he therefore seeks that said judgment may be reversed, recalled or corrected, as law and justice may require, that is to say, the following errors, viz.:--

I.That neither before nor after said submission was signed and executed, did the referee therein named, give the plaintiff in error any notice of a time or place for hearing the matter submitted, nor were there any witnesses sworn or examined at any time, but an award was made without the knowledge of the plaintiff in error and without any trial or hearing of the matters submitted, and a report made therein to the Supreme Judicial Court in and for the county of Kennebec, at the August term, 1873, without the knowledge of this plaintiff, and a judgment obtained thereon against said plaintiff in error wrongfully and in his absence.

II.That by reason of the premises, and relying on the assurance of said referee after the execution of said submission that no award should be made until a full hearing should be had, the plaintiff in error was deceived and had no reason to suppose and did not suppose any award in the premises had been made, or any report thereon rendered to said court, and therefore was not present himself or by attorney, and was deprived of his right to file exceptions to the acceptance of said report.

III.In this, that if any hearing was ever had by said referee on the matters submitted, or any of them, after the signing of said submission, it was ex parte and without the knowledge or consent of said plaintiff in error and in his absence.

IV.In this, that the bark, logs and lumber described in said submission, and the land from which they are alleged to have been taken and on which damage was claimed to have been done, never belonged to the defendants in error, and that they never had any right, title or interest therein, all of which this plaintiff was prevented from showing, by reason of the premises set forth in the preceding assignments of error.

V.In this, that the said submission was not a statute submission but only a submission at common law, and ought not to have been returned to the Supreme Judicial Court at all, and that court had no jurisdiction of the same, and could not enter up any...