In re Moore

• Decision Date: 13 March 1915
• Parties: In re MOORE.
• Court: Maine Supreme Court

93 A. 180

113 Me. 195

In re MOORE.

Supreme Judicial Court of Maine.

March 13, 1915.

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

Proceedings for the settlement of the final account of Joseph E. Moore, guardian of Albert T. Gould. From an order of the supreme court of probate denying a motion of the guardian to state his account and make corrections, he brings exceptions. Overruled.

Argued before SPEAR, CORNISH, BIRD, and HANSON, JJ.

Arthur S. Littlefield and Rodney I. Thompson, both of Rockland, for appellant. Alan L. Bird, of Rockland, and Norman L. Bassett, of Augusta, for appellee.

HANSON, J. The appellant was formerly guardian of Albert T. Gould, whose petition to reopen the first and final account of the appellant was granted by the judge of probate of Knox county on July 16, 1912. From the decree of the judge of probate granting said petition and adjudging the amount of the liability of the appellant as such guardian, appeal was taken by the appellant to the supreme court of probate, and was then reported by agreement to this court for determination, as in 112 Me. 119, 90 Atl. 1088.

The case was argued at the June law term, 1913. On July 1, 1914, certificate of decision was sent down as follows:

"Decree of probate court affirmed. The case is remanded to the supreme court of probate for the county of Knox for further action in accordance with this opinion."

At the September term of the supreme court of probate, 1914, the appellant filed a motion asking the court to state the appellant's account, and make corrections: (1) In a charge of $916.35, which is erroneously stated in the opinion as $918.35; (2) for further allowance and deductions for expenses; (3) for deduction for interest charged; (4) for special allowance of $22 for interest incorrectly figured, concluding the petition as follows:

"Wherefore the said Moore prays that this court will state such account, using the items determined by the law court, and determine the items above mentioned and the rate of interest, if any, which shall be allowed in the final decree, and correct all errors which may be found, all of which he says is in accordance with the mandate and opinion of the law court."

The presiding justice denied the motion and caused the following order to be entered:

"In the above-entitled cause it is ordered: That, in accordance with the certificate from the law court, the clerk of this court enter on the docket of the cause in this court, 'Decree of probate court affirmed.' That the motion of the appellant presented and filed at this term, asking this court to state the appellant's account and make certain corrections and allowances therein for his benefit, as set forth in said motion, cannot now be entertained and acted upon by this court"

The appellant excepted to this order, and the case is before this court on these exceptions.

The counsel for appellant says:

"We do not contend that there was any power in the court to in any way modify or change the determination of the law court, or that there would be any power in the court, if the law court had simply affirmed the decree of the probate court and stopped there. Such affirmance would leave nothing for the supreme court of probate to do."

The mandate in this case does something more than affirm the decree of the probate court. It sends the case back to the supreme court of probate for "further action in accordance with this opinion." Counsel cites Farnum's Appeal, 107 Me. 493, 78 Atl. 901, where the order was "and that the case stand for further proceedings in the supreme court of probate," and Merrill Trust Co., Appellant, 104 Me. 577, 72 Atl. 745, 129 Am. St. Rep. 415, where it was ordered "the case is remitted to the supreme court of probate sitting for Hancock county to make and enter decree in accordance with this opinion," and adds "that in each of these cases there was something further to be done in the supreme court of probate."

An examiuation of these cases will show, as counsel for the appellant says, that "there was something more to be done" in each case. The rights of the parties required the direction sent down therein. The cases were not before the court for final determination upon the merits, or in such form as to warrant final decree or direction. Here the matters before the court were well defined; the questions involved comprehended all the elements of a completed case, aside from the agreement to abide the determination of the court. The new matters now urged were not urged at any time before the decision therein, and cannot therefore be now considered in these proceedings. La Forest v. Black Co., 100 Me. 218, 60 Atl. 899.

The reasoning of the counsel for the appellant is not at variance with the law governing the case, but his conclusion that there was something further to be done by the supreme court of probate beyond the recording the decision of this court is at variance with both the law and the facts in the case. The case was reported in full to this court and argued at length. It nowhere appeared in the report, nor was it mentioned in argument or brief, that question was made as to any items appearing in the exceptions and now urged here. The items were not called to the attention of this court or opposing counsel, and thus could not have been in contemplation of this court in reaching the opinion handed down. If it were the intention of the court to authorize further action, what was such action to be? There was nothing in the case calling for a further investigation. The case was reported for the determination of this court, and under the rule the decision reached is necessarily final. But the case is here upon exceptions and may be considered upon that ground alone. The office of an exception generally is to preserve a known or supposed right, taken upon a hostile ruling upon a matter of law, or exclusion, or admission of testimony, or order imperiling an asserted right, and such exception must be taken in the trial court and not in the court of last resort, or to the decree or order of such court sitting as a court of last resort. When properly taken, it must as properly have the consideration of the court. But here no reason for consideration is present. The settled law and practice is opposed to the claim of the appellant that a presiding justice could lawfully grant the motion in the case at bar.

In Mitchell v. Smith, 69 Me. 67, the law court ordered that, upon filing an amendment to the writ, judgment for the...