McDonough v. Blossom

• Decision Date: 10 May 1912
• Citation: 83 A. 323,109 Me. 141
• Parties: MCDONOUGH v. BLOSSOM.
• Court: Maine Supreme Court

83 A. 323

109 Me. 141

MCDONOUGH

v. BLOSSOM.

Supreme Judicial Court of Maine.

May 10, 1912.

Report from Superior Court, Cumberland County.

Petition by Brian E. McDonough against Fred A. Blossom for writs of review in two actions at law. On report. Writ issued.

Argued before WHITEHOUSE C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ.

Michael T. O'Brien and Carroll W. Morrill, both of Portland, for plaintiff.

M. P. & H. P. Frank, of Portland, for defendant.

HALEY, J. The petitioner asks for writs of review for two actions at law tried in the superior court for Cumberland county at the November term, 1910. The petition is based upon paragraph 7, § 1, c. 91, R. S. In the original actions the petitioner was defendant. The actions were upon two promissory notes. The defense was forgery. The defendant claims that one James Dunn forged many notes, among which were the two in suit in the above actions. Dunn has disappeared.

The case tried in the superior court immediately preceding the case against the petitioner was upon a note claimed to have been signed by one James Rowe, and claimed by said Rowe to have been forged by the said Dunn. The verdict was for the plaintiff. Immediately upon receiving the verdict, the justice holding the court, in the presence of the jury, ordered the defendant Rowe into custody for perjury. Rowe was taken from the courtroom by an officer, and in a few minutes, by order of the justice, was returned into court, and, in the presence of the jury, was placed under $2,000 bonds to appear at the next term of the court to answer to the charge of perjury. The grand jury returned no bill against Rowe, which ended the criminal charge against him, but did return several indictments against Dunn for forgery, one of which was for forging the note which Rowe had testified was forged and for giving which testimony Rowe was arrested for perjury.

Immediately after Rowe had recognized as above, the trial of the cases against the petitioner was begun. The defense being the same, the counsel for the petitioner requested a continuance upon the ground that the jury having in the preceding case passed upon the same question, and that the defendant intended to call as a witness said James Rowe, and the arrest of him by order of the court had prejudiced the jury against his testimony, were disqualified. The motion was denied by the presiding justice, who allowed an exception to his ruling, and a jury was impaneled, seven of whom had sat in the preceding case. The verdict was for the plaintiff in each case, and a motion for a new trial was made upon the ground that the verdict was against the law and the evidence. The time for filing the report of evidence and exceptions was extended to the February term, 1911, and the case marked "Law." At the February term, the time for filing the report of evidence and exceptions was again extended to the last day of the February term. On the 19th day of February, 1911, the judge of the superior court died, and the exceptions had not been signed by him. The case was entered at the June term of the law court, and motion and exceptions were overruled for want of prosecution.

The petitioner claims a review because the judge of the superior court died before the expiration of the time allowed the petitioner to file his exceptions, and that there was no way to have the exceptions allowed, that the law court might pass upon them, because of the death of the presiding justice. The respondent claims there was laches on the part of the petitioner that bars him from being heard upon this petition; that there was ample time allowed for the filing of the exceptions; and that the petitioner should have had them signed and allowed in the lifetime of the justice of the superior court.

The record shows that the petitioner's right to file his exceptions was extended to the last day of the February term, and further shows that the February term adjourned on February 24th.

We cannot hold the petitioner guilty of laches in not presenting his exceptions to the judge for his approval before the 19th day of February, the day of the death of the judge, because he had several days after the 19th day of February in which to present them. All that the law required was that the exceptions should have been presented within the tune allowed. No one, in preparing exceptions, would take into consideration the fact that the judge might die before the time fixed for filing the exceptions. The petitioner had until the last day of the February term in which to file his exceptions. Several days before the close of that term the judge died, and they could not be allowed after his death. To hold that it was laches on the part of the petitioner not to have filed them before the death of the justice would be, in substance, to hold that an act of God would make the petitioner guilty of laches.

In Moulton, Petitioner, 50 N. H. 532, the court allowed an appeal by the administrator, when the party entitled to it had died just before the 60 days allowed for claiming it, saying:

"It was no neglect for him to wait, even if he had waited until the last day of the 60 days before claiming an appeal. The statute giving him that right, the appeal would have been well enough if he had lived; but his death, under the circumstances of the case, was a misfortune which defeated it."

No authority has been cited, and we venture the assertion that none can be cited, upholding the ruling of the justice that the petitioner should proceed to trial at the time he was compelled to do so. The jury were disqualified by their verdict in the preceding case. The arrest of...