Kittery Elec. Light Co. v. Assessors of Town of Kittery

• Decision Date: 16 May 1966
• Citation: 219 A.2d 744
• Court: Maine Supreme Court
• Parties: KITTERY ELECTRIC LIGHT CO. v. ASSESSORS OF the TOWN OF KITTERY and Inhabitants of the Town of Kittery. NEW HAMPSHIRE ELECTRIC CO. v. ASSESSORS OF the TOWN OF KITTERY and Inhabitants of the Town of Kittery. PUBLIC SERVICE CO. OF NEW HAMPSHIRE v. ASSESSORS OF the TOWN OF KITTERY and Inhabitants of the Town of Kittery.

Page 744

219 A.2d 744

KITTERY ELECTRIC LIGHT CO. v. ASSESSORS OF the TOWN OF KITTERY and Inhabitants of the Town

of Kittery.

NEW HAMPSHIRE ELECTRIC CO. v. ASSESSORS OF the TOWN OF KITTERY and Inhabitants of the Town

of Kittery.

PUBLIC SERVICE CO. OF NEW HAMPSHIRE v. ASSESSORS OF the TOWN OF KITTERY and Inhabitants of the Town

of Kittery.

Supreme Judicial Court of Maine.

May 16, 1966.

Pierce, Atwood, Scribner, Allen & McKusick, by Vincent L. McKusick and Sigrid E. Tompkins, Portland, for plaintiffs.

Charles W. Smith, Saco, Francis F. Neal, Kittery, for defendants.

Before WILLIAMSON, C. J., and WEBBER, J., TAPLEY, MARDEN, and DUFRESNE, JJ.

RESCRITP

DUFRESNE, Justice.

The three plaintiffs appeal from the several judgments entered in the Superior Court in their favor and the joint defendants cross-appeal. These appeals and cross-appeals were docketed and heard together in this Court (the 1453 appeals). The lower Court's disposition of the plaintiffs' appeals from assessors' refusal to abate their respective 1961 taxes furnishes the subject matter of the instant proceedings. In the companion case decided this day, (the 1452 appeals), 219 A.2d 728, the plaintiff Kittery Electric Light Co. appealed the lower Court's decision respecting the 1960 tax and the joint defendants cross-appealed therein. While the 1452 appeals were heard on the merits, the 1453 appeals raise a preliminary question, to wit, the propriety of the appeals themselves relative to the manner of use of the appellate process. Indeed, plaintiffs and defendants appeal from the lower Court's dismissal of their appeals for untimeliness.

The record establishes that the three plaintiffs, as taxpayers in the town of Kittery, Maine, had appealed to the Superior Court from the refusal by the town assessors to abate their respective taxes. There were four separate cases, involving respectively the 1960 taxes of Kittery Electric Light Co., the 1961 taxes of Kittery Electric Light Co., the 1961 taxes of New Hampshire Electric Co., and the 1961 taxes of Public Service Co. of New Hampshire. Although no formal order of consolidation was entered, the four cases were heard together by a single Justice of this Court acting in the Superior Court. In single memorandum of findings and decision, under date of January 28, 1965, he made orders for judgment in favor of the respective plaintiffs in each case in the respective varied amounts to which he found the respective plaintiffs entitled. Pursuant to M.R.C.P. 58, the Clerk on January 29, 1965, entered separate judgments on the individual docket of each case. No subsequent docket entry therein appears except the notation of the filing of a single joint notice of appeal, by the plaintiffs on March 30, 1965, and by the defendants on March 23, 1965 and April 20, 1965. We note that the filing of these notices of appeal were more than 30 days from the entry of the judgments. In the Kittery Electric Light Co. case in the 1452 appeals, a motion for amendment of findings and judgment under M.R.C.P. 52(b) was made; that stopped the running of the time for appeal as to that case and that case alone. M.R.C.P. 73(a). Indeed the motion was made by the single plaintiff, Kittery Electric Light Co., captioned in the following style:

KITTERY ELECTRIC LIGHT COMPANY

VS.

ASSESSORS OF TOWN OF KITTERY, et al

DOCKET NO. 4449 (Tax Year 1960)

and prayed specifically for amendment of findings and judgment in relation to the taxes for the year 1960. No attempt was made to stop the running of the time for appeal as to any of the other three judgments, and the same became final upon the expiration of 30 days from the time of their entry.

The question at issue is, whether the presiding Justice below was in error when he dismissed the instant appeals because the notice of appeal was filed more than 30 days after the entry of the judgments.

The defendants contend that where there was a virtual consolidation for trial of the four separate cases, the filing of the motion to amend the findings and judgment in one of them should benefit all and stop the running of the time for appeal in each case. The argument does not stand close legal scrutiny.

As pointed out in Field & McKusick, Maine Civil Practice, Comments § 42.3, consolidation when formally ordered, may mean (1) 'consolidation for purposes of a joint hearing or trial on any or all issues,' or (2) 'full consolidation of the actions with the same consequences as if a single action had been brought at the outset.'

In these cases, there was no formal consolidation, no formal order of consolidation for us to construe as to its intended reach or character. There was simply a mutual understanding among the parties and the Court that the four cases were to be tried together. The procedural unity ended with the ending of the trial.

Mere agreement by the parties, to try togethr the four separate tax abatement appeals involving different years of taxation and different parties but having issues common to all, and their subsequent joint trial, did not merge the several actions into one single one, but left each case, except for the hearing or trial, thereof subject to the same procedure thereafter as if tried separately. See, Field v. Lang, 89 Me. 454, 36 A. 984; Lardner v. Cook, 152 Kan. 266, 103 P.2d 849 (1940).

The parties and the Court did not adhere strictly to these stated legal imports, as the Court dismissed the single defendants' appeal from the three separate judgments relative to the 1961 taxes in one single decree on one single motion, and the reason for dismissal was the belatedness of the filing of the notice of appeal under M.R.C.P. 73(a). Duplicity was not raised in the lower Court nor in this Court.

The general rule seems to be that, where multiple actions, separate and distinct, have been brought by different plaintiffs against co-defendants, and the several actions, for the convenience of the parties and to avoid unnecessary costs and delay, were united for purposes of trial only and separate verdicts and judgments were rendered and entered in each of the respective actions in their own individual dockets, then such actions are not treated as consolidated for all...