McKown v. Powers

• Decision Date: 09 March 1894
• Citation: 29 A. 1079,86 Me. 291
• Parties: McKOWN v. POWERS et al.
• Court: Maine Supreme Court

29 A. 1079

86 Me. 291

McKOWN

v. POWERS et al.

Supreme Judicial Court of Maine.

March 9, 1894.

Exceptions from supreme judicial court, Lincoln county.

Action by William H. McKown against Asbury N. Powers and another. Verdict for defendants. Plaintiff brings exceptions. Dismissed.

Geo. D. Ayers and George B. Sawyer, for plaintiff. Prank & Larrabee and Geo. B. Kenniston, for defendants.

EMERY, J. This is a real action coming before the law court on motion and exceptions.

1. Motion. The only issue for the jury, under the rulings of the judge, was whether the plaiutiff's grantors had occupied the demanded premises, openly, notoriously, continuously, exclusively, and adversely, for at least 20 years. The plaintiff had the affirmative of this issue, and we think he failed to maintain it.

2. Exceptions. The bill of exceptions is in the following general terms: "In the course of the trial, sundry evidence offered in behalf of the plaintiff was excluded by the court, and other evidence offered in behalf of the defendants was admitted, against the plaintiff's objections, as will fully appear by the report of the evidence, which goes forward as a part of the bill of exceptions, as well as under the plaintiff's motion for a new trial. Said motion was seasonably filed, and made part of the case. Plaintiff's counsel requested certain instructions to be given, which were refused, and which, together with the entire charge, make part of this case. The parts of the charge which are specifically excepted to, as well as the rulings on the admission of evidence excepted to, are printed in italics.

"To the several rulings in the exclusion and admission of evidence, and to the several instructions to the jury as indicated above, and to the refusals to instruct, the plaintiff excepts, and prays that his exceptions may be allowed."

By such a bill of exceptions, the plaintiff does not separately present each issue of law in that clear, distinct, summary manner required by the statute. Instead of separating the various rulings, and presenting each by itself, clearly and comprehensively, so that each may be understandingly considered and determined, he presents all, or nearly all, the rulings indiscriminately, and in a confused mass, thus throwing upon the court a great and unnecessary labor of research and analysis.

This court has often expressed its disapproval of this form of bills of exceptions, and declared that it was not bound to consider exceptions presented in this manner. State v. Reed, 62 Me. 135; Bradstreet v. Bradstreet, 64 Me. 204; Webber v. Dunn, 71 Me. 331. In other (unreported) cases the court has refused to consider them at all. We find, however, that the disapproved and erroneous practice is still continued to some extent; and inasmuch as, after examination, we are satisfied these exceptions could not be sustained, we think we should take this occasion to authoritatively declare that the court not only need not, but hereafter will not, unless in exceptional cases, consider exceptions presented in this objectionable mode.

A brief review of the origin and nature of bills of exceptions will fully justify the enunciation of this rule.

Bills of exceptions have their origin in the statute of Westminster 2 (13 Edw. I. c. 31). Before that statute, the only remedy for the correction of the errors of justices presiding at nisi prius terms was the writ of error. That writ, however, only reached the errors apparent upon the judgment roll, and hence did not remedy errors made by the justices in their various rulings upon the evidence and in their instructions to the jury. This defect of remedy was sought to be removed in the statute named, by supplementing the record to be sent up on writ of error. The statute provided that a party dissatisfied with any such ruling during the trial of a cause might "write the exception" thereto, and tender the written statement to the judge to be sealed by him "for a testimony." This written statement thus sealed became known in practice as a "bill of exceptions."

This bill of exceptions, however, was not alone sufficient to procure a review of the rulings excepted to. If the excepting party did not sue out a writ of error, he waived his exceptions. If he did sue out the writ, the bill of exceptions was appended to the judgment roll, and sent along, with the writ of error and the record, into the court of review. This was the old English practice (Tidd, Pi*. 786), and substantially the same course of proceedings is still pursued in the federal courts of this country.

In strictness, the exception was to be written out and sealed during the trial, and at the time the point was raised and ruled upon, and this seems to have been the earlier practice under the statute. Davies v. Lowndes, 1 Man. & G. 473; Tidd, Pr. 788. This strictness was later relaxed, and parties were permitted to draw up and present the formal bill of exceptions after the trial as now; but still, according to Tidd, "the substance must be reduced to writing while the thing is transacting, because it is to become a record." According to Archbold, the party excepting should state that he excepts, and the point upon which he excepts, and then a memorandum should be made at the time by the parties and the judge. The bill of exceptions could be drawn up in form afterwards. In the federal courts the formal bill of exceptions may, in practice, be prepared after the trial, but, in theory, each exception is made and stated at the time of the ruling. The later draft is made in a measure nunc pro tunc. The bill of exceptions should purport upon its face to be the same as if actually reduced to writing during the trial. It should at least state that the exception was taken at the time of the ruling, and before the jury left the bar of the court Walton v. U. S., 9 Wheat. 651; Sheppard v. Wilson, 6 How. 260; Phelps v. Mayer, 15 How. 160; Railway Co. v. Heck, 102 U. S. 120.

In the English and American practice, under the statute of Westminster allowing exceptions, it has been uniformly held that, to obtain the benefit of the statute, and the allowance of the exceptions, the party desiring to except should raise each point distinctly by itself for the consideration of the judge, and should apprise the judge and the opposite party of his claims and positions in presenting it. If he objects to any evidence offered by the other party, he should at the time state briefly and distinctly upon what grounds he places his objection. If he offers evidence which is objected to and urges its admission, he should state, as briefly and distinctly, upon what rule or principle he relies for its admissibility. In the matter of instructions to the jury, he should clearly ask what rule he desires to be given, and clearly indicate to what rulings he objects, before the jury are sent out with the case. When the points thus relied upon by either party are thus clearly presented to the judge, and made known to the other side, the judge is less likely to err, and may be able to correct errors already made, or the opposite party may waive some or all the points, and assent to an adverse ruling upon them. This course greatly lessens the chances of mistrials, and subserves those most desirable qualities, promptness and accuracy in the administration of justice.

The United States supreme court holds counsel fully up to the above standard of practice. It will not consider exceptions unless they are taken and...