McKenney v. Wood

• Decision Date: 04 August 1911
• Citation: 80 A. 837,108 Me. 335
• Parties: McKENNEY v. WOOD.
• Court: Maine Supreme Court

80 A. 837

108 Me. 335

McKENNEY

v. WOOD.

Supreme Judicial Court of Maine.

Aug. 4, 1911.

Report from Supreme Judicial Court, Cumberland County.

Bill by Charles W. McKenney against Frank W. Wood. Application for a decree on findings was objected to, and the question was reported to the law court. Remanded, for new hearing on the merits.

Argued before SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ.

William Lyons and Robert Treat White-house, for plaintiff.

Foster & Foster and Frank & Frank, for defendant.

SAVAGE, J. This cause was heard on bill, answer, and proof before the late Justice Peabody, who on the very day of his death filed in the clerk's office an unsigned statement of his findings of fact and rulings thereon, the last clause of which was the following: "A final decree to be signed accordingly."

After the death of Justice Peabody, application was made to another justice to settle and sign the decree. The adverse party objected. Thereupon the cause was reported to the law court, which is to determine (1) whether the paper filed by Justice Peabody is to be given the same effect as if it had been signed by him; and (2) whether the final decree can now be settled and signed by any other justice.

Whether the statement of "the findings of fact and rulings thereon" was signed by the justice who heard the case we do not regard as of any great importance. Such findings and rulings, signed or unsigned, are at the outset merely tentative; that is to say, they are subject to modification until the decree is signed. They may be added to, or diminished, or otherwise changed by the justice, of his own motion, or upon the motion of either party.

There is no requirement in chancery practice, nor under any statute or rule of court, that such findings and rulings shall be filed. A decree alone is sufficient. Peirce v. Woodbury, 100 Me. 22, 60 Atl. 424. If findings and rulings are filed and signed, they are not effective until the decree is signed, and, of course, it is the same if they are not signed. They are merely the basis for the decree. They are not the decree itself. If they are filed with the decree, or otherwise incorporated into it, it does not matter whether they have been signed or not.

A more important inquiry is involved in the second question. When the justice who heard the cause is dead, or otherwise incapacitated, can another justice settle and sign the decree? We think not. Equity rule 28 (103 Me. 546, 70 Atl. xvi) seems to be decisive. That rule, so far as material here, reads as follows:

"When a party is entitled to a decree in his favor, he shall draw the same and file it and give notice.

"If corrections are desired, they shall be filed within five days after receipt of notice. If the corrections are adopted, a new draft shall be prepared and submitted to the justice who heard the case, for approval. If they are not adopted, notice shall be given of the time and place when and where the matter shall be submitted to such justice for decision, and he shall settle and sign the decree."

Under this rule only the justice who heard the case can settle and sign the decree, excepting by consent. And justice, as well as the letter of the rule, requires this interpretation. If such was not the rule, it ought to be. Since the enactment of section 9 of chapter 68 of the Laws of 1881, it has been permissible, contrary to the ancient practice in equity, to take out the evidence in whole or in part, orally in the presence of the court, and not wholly by depositions. In fact,...