Lovejoy v. Coulombe

• Decision Date: 21 March 1957
• Citation: 131 A.2d 450,152 Me. 385
• Parties: Cleveland LOVEJOY et al., In Equity v. Ralph J. COULOMBE et al.
• Court: Maine Supreme Court

Page 450

131 A.2d 450

152 Me. 385

Cleveland LOVEJOY et al., In Equity v. Ralph J. COULOMBE et al.

Supreme Judicial Court of Maine.

March 21, 1957.

Robert T. Smith, So. Paris, for plaintiffs.

Gerry Brooks, Bethel, for defendants.

Before WILLIAMSON, C. J., and WEBBER, BELIVEAU, TAPLEY, SULLIVAN, and DUBORD, JJ.

DUBORD, Justice.

This is a bill in equity seeking specific performance of a contract to convey real estate.

The case is before the Court on exceptions of the defendants, and on appeal by the defendants after a decision of the presiding justice in favor of the plaintiffs.

The manner in which the exceptions and the appeal are presented to this Court leaves much to be desired.

The bill of exceptions sets forth five alleged causes of error. No portion of the record nor the evidence were made a part of the bill of exceptions.

The record indicates that a demurrer to the original bill was sustained for the alleged failure on the part of the plaintiffs to allege a specific date when the contract of purchase was entered into. Plaintiffs then filed a motion to amend their bill. No objection was made by the defendants to the motion, which was allowed by the presiding justice. A new demurrer was filed to the amendment presented by the plaintiffs. The record indicates that the second demurrer was not certified by counsel to be in good faith, and in accordance with Equity Rule 15, the demurrer should not have been filed.

An examination of the amended bill shows sufficiency of allegations. The second demurrer was properly overruled by the presiding justice. The defendants take nothing by this exception.

The record indicates that defendants filed an answer to the amended bill on March 14, 1956, and the plaintiffs' replication was filed on March 19, 1956. Hearing was held on March 23, 1956.

Prior to the hearing, counsel for the defendants presented a motion to the sitting justice that the cause be heard only upon bill and answer, the answer to be taken as true.

'After answer filed in an equity cause, the orator may elect to set the cause for hearing upon bill and answer, or traverse the truth of the answer by replication, thereby raising an issue of fact to be settled by evidence. If the cause be set for hearing upon bill and answer, the facts stated in the answer are to be taken as true, because the orator elects to so treat them, precisely as a plaintiff in an action of law, by demurrer to a defendant's plea, admits all the facts stated in it that are well pleaded.' Dascomb v. Marston, 80 Me. 223, 230, 13 A. 888, Hall v. Hamilton, 123 Me. 80, 121 A. 551; Section 389, Whitehouse Equity Pleading & Practice.

The motion of counsel for the defendants was based on Equity Rule 22, and Section 17, Chapter 107, R.S.1954, both of which provide as follows:

'When a replication is filed to a plea or answer the court upon motion of either party may set the cause for hearing upon bill, plea or answer, and evidence, but such hearing shall not be had until after thirty days from the filing of the replication unless by consent or special order of Court.'

The motion was denied and exceptions taken by the defendants to the ruling.

While it is true that Equity Rule 22, and Section 17, Chapter 107, R.S.1954 do not specify the nature of the consent required by its provisions, the record clearly shows that counsel for the plaintiffs and the defendants had arrived at a definite oral agreement that the cause would be heard on the date assigned for a hearing. The sitting justice found as a fact that the parties had made a mutual agreement to that effect. Moreover, in defendants' bill of exceptions, counsel sets forth that an oral agreement had been made by counsel, in the presence of the Court, that the cause be assigned for a hearing on March 23, 1956. Defendants' exceptions now come with ill grace. The motion was properly denied and defendants take nothing by this exception.

The other three alleged errors are applicable to matters of fact and are not open to consideration upon exceptions. Section 26, Chapter 107, R.S.1954, Emery v. Bradley, 88 Me. 357, 34 A. 167; American Oil Company v. Carlisle, 144 Me. 1, 63 A.2d 676.

The final decree of the sitting justice was filed on June 15, 1956, and notice given on the same date. The docket indicates that defendants noted an appeal as of June 25, 1956.

Under the provisions of Section 21, Chapter 107, R.S.1954, an appeal shall be claimed by an entry on the docket of the Court from which the appeal is taken, within ten days after such decree is signed, entered and filed, and notice thereof has been given by such clerk to the parties or their counsel.

While it would seem that all an appellant needs to do in order to claim his appeal is to have an entry made on the docket within the specified time, better practice indicates the advisability of filing with the clerk a written statement of appeal.

'In addition to the entry on the docket, the practice is recommended of filing with the clerk a written statement giving the title of the cause, the nature of the same, the fact that a decree has been rendered therein in favor of plaintiff or defendant and that such plaintiff or defendant appeals therefrom, signed by the counsel for the party appealing as in the case of exceptions. This fully protects the clerk by providing him with conclusive proof of the fact of such appeal by the signature of counsel and should be required by him for that reason as in the case of appearance instead of relying upon an oral request of counsel to make the entry on the docket.' Whitehouse Equity Jurisdiction Pleading & Practice, Section 620.

The appeal albeit not perfected in the best approved manner, is properly before us. We, therefore, give it consideration in accordance with the well determined procedure that in an appeal in equity, the cause is heard de novo on the entire record. 'Appeals in Equity matters are heard anew upon the record.' Trask v. Chase, 107 Me. 137, 77 A. 698; Pride v. Pride Lumber Company, 109 Me. 452, 84 A. 989; Sears Roebuck & Company v. Portland, 144 Me. 250, 68 A.2d 12, 16.

'Ordinarily, an appeal vacates the judgment below and the case when heard on appeal is heard de novo and judgment is entered upon the new decision.' Sears Roebuck & Co. v. Portland, supra.

'Upon the whole case the court is required to 'affirm, reverse or modify the decree of the court below or remand the cause for further proceedings, as it may think proper.'' Trask v. Chase, supra; Pride v. Pride Lumber Company, supra; Sears Roebuck & Co. v. Portland, supra.

'All questions presented by the record are open for consideration on appeal and such decree is to be directed as the whole case requires.' Doyle v. Williams, 137 Me. 53, 15 A.2d 65, 68.

'All issues raised by the record are open for consideration and determination anew by [the law court on appeal]. Such is the effect of [Section 21, Chapter 107, R.S.1954], which provides in part that in an appeal from a final decree in equity the law court shall 'affirm, reverse, or modify the decree of the court below, or remand the cause for further proceedings, as it deems proper.'' Woodsum v. Portland R. Co., 144 Me. 74, 65 A.2d 17, 24.

The law court is 'not limited to a consideration of errors in the decree claimed by the parties filing the appeal but may consider issues raised by any party.' Woodsum v. Portland R. Co., supra.

'Findings of the sitting justice are to stand unless shown to be clearly erroneous.' Trask v. Chase, supra; Wolf v. W. S. Jordan, Co., 146 Me. 374, 82 A.2d 93.

'It is well settled that the decree of a single justice upon matters of fact in an equity hearing will not be reversed unless it clearly appears that the decree is erroneous.' Eastman v. Eastman, 117 Me. 276, 104 A. 1, 3.

'In case of an appeal in equity proceedings, the burden is upon the appellant. He must show the decree appealed from to be clearly wrong, otherwise it will be affirmed.' Wilson v. Littlefield, 119 Me. 143, 109 A. 394, 395; Levesque v. Pelletier, 144 Me. 245, 68 A.2d 9. Tarbell v. Cook, 145 Me. 339, 75 A.2d 800.

The original bill, sets forth an agreement for the sale by defendants and the purchase thereof by the plaintiffs of certain real estate situated partly in the Town of Bethel and partly in the Township of Mason, in Oxford County, for the agreed price of $3,000. The date of the agreement was alleged as 'on or about the fifteenth day of April 1955', and the bill further alleges that the defendants executed and signed a memorandum in writing. No copy of the memorandum was included in the bill either by way of allegation or exhibit. Plaintiffs further alleged that pursuant to the agreement, they entered into possession of the premises and made valuable and substantial improvements, in reliance on defendants' agreement. Plaintiffs further alleged that the agreement was understood by all parties to be conditioned upon the negotiation of a loan on the part of the plaintiffs with the Veterans Administration of the United States of America. Plaintiffs alleged ability and readiness to perform the agreement, together with a demand for performance on the part of the defendants, and failure to perform on the part of the defendants. Plaintiffs further alleged that defendants served upon them a notice to quit the premises and further evinced an intention to bring an action of forcible entry and detainer to dispossess the plaintiffs.

Plaintiffs prayed for specific performance of the agreement and for an injunction to restrain the defendants from instituting an action of forcible entry and detainer and from otherwise interfering with plaintiffs' possession.

The bill required an answer under oath.

Plaintiffs' application for a temporary injunction was granted.

Plaintiffs' bill was verified in accordance with the provisions of Equity Rule 5.

To the original bill, defendants filed a special demurrer inserted in an answer.

In their answer defendants admitted plaintiffs'...