Lebel v. Cyr.

• Decision Date: 18 October 1943
• Citation: 34 A.2d 201
• Parties: LEBEL v. CYR.
• Court: Maine Supreme Court

34 A.2d 201

LEBEL

v.CYR.

Supreme Judicial Court of Maine.

Oct. 18, 1943.

Exceptions from Superior Court, Aroostook County.

Action by Flavie Lebel against Alexina Cyr. A judgment of default was entered, and the defendant brings exceptions.

Exceptions overruled.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, MURCHIE, and CHAPMAN, JJ.

Alice M. Parker, of Lewiston, for plaintiff.

Arthur J. Nadeau, of Fort Kent, and John B. Pelletier, of Van Buren, for defendant.

HUDSON, Justice.

This is a real action brought to this Court on exceptions by the defendant to an ordered judgment of default.

These are the material, undisputed facts: The writ, dated August 14, 1941, was entered in the Superior Court in Aroostook County at the September term 1941. That Court has four terms yearly in that county-in February, April, September, and November. At the April term 1942 by agreement the action was referred under rule of court to a Justice of the Superior Court “with right of exceptions in matters of law; defendant to have right to file disclaimer.” No disclaimer was filed. At the November term 1942 the reference was taken off by agreement, and the defendant was ordered by the Court to file pleadings and specifications of defense on or before December 1, 1942. Also at that November term the case was referred to the same Justice with like right of exceptions. Rule to the referee did not issue. At the February term 1943 the plaintiff filed a motion for default because the pleadings and specifications had not been filed, and the defendant moved to be permitted to file the same then on the ground that she had not been able to obtain the services of a surveyor which she considered necessary for compliance with the order for previous filing. These two motions were heard together by the presiding Justice, who granted the motion for default. The record is silent as to what if any action was taken on the defendant's motion.

Under the exceptions, as admitted in defendant's brief, two questions only are here presented for decision: namely, (1) “While the said case was under references, did the said Superior Court have jurisdiction to order a judgment by default in favor of the plaintiff,” and (2) “Did the Court exercise sound judicial discretion, so as to work out substantial equity and justice.”

The First Question.

We are concerned with the second reference at the November term 1942. This was by rule of court. References may be by rule of court or otherwise. When not by rule of court, either party to the submission may revoke the reference, but this does not hold where the submission is by rule of court. Gregory v. Pike, 94 Me. 27, 32, 46 A. 793; Clark v. Clark, 111 Me. 416, 417, 418, 89 A. 454. Where there is a selection by the parties of “another and different tribunal from that in which a case is pending to settle their controversies, as when they enter into 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, 6 Cow., N.Y., 399; Hearne v. Brown, supra, 67 Me. on page 158. Whenever “by express agreement or necessary implication the cause is to be retained on the docket until the arbitration is perfected by an award” (italics ours), there will be no discontinuance of the pending cause by reason of mere submission to arbitration. Hearne v. Brown, supra, 67 Me. on page 158.

In Clark v. Clark, supra, 111 Me. on page 418, 89 A. on page 455, it is stated.

“The submission of a cause by rule of court necessarily means that the cause is entered upon the docket of that court, is within the jurisdiction of that court, and under the control and direction of that court so far, at least, as procedure is concerned. The right of the court, therefore, acting in the exercise of proper discretion, and within the bounds of justice, would seem to fully warrant the recall of the rule of reference under circumstances like the case at bar.”

In Clark v. Clark, supra, procedure was concerned. So it is in the instant case. At the February term 1943 the Court procedurally and with authority recalled the case from reference. In Dexter v. Young, 40 N.H. 130, cited in Clark v. Clark, supra, 111 Me. on page 418, 89 A. on page 455, it was held that upon a hearing and for good cause the Court could rescind a rule of reference and dispose of the cause in some other way.

Our answer to question one is that the reference did not effect a loss of jurisdiction and deprive the Court of the right of revoking the reference and ordering the judgment of default.

But the defendant contends that the Court rendered no decision on her motion (heard with the motion for default) to permit the filing of her pleadings and specifications at that term of court. However, the effect of the granting of the plaintiff's motion for default was to deny in fact the defendant's motion.

The Second Question.

Whether or not the reference should be revoked by the Court and the defendant defaulted under the circumstances of the case were within the discretion...