Milliken v. Morey

• Decision Date: 02 March 1893
• Citation: Milliken v. Morey, 85 Me. 340, 27 A. 188 (Me. 1893)
• Parties: MILLIKEN et al. v. MOREY et al.
• Court: Maine Supreme Court

27 A. 188

85 Me. 340

MILLIKEN et al.

v. MOREY et al.

Supreme Judicial Court of Maine.

March 2, 1893.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

Petition by Charles R. Milliken and others, creditors of the Dennison Paper Manufacturing Company, insolvent, against Edwin Morey and others, as Morey & Co., to obtain a decree expunging a claim proved by defendants against the insolvent's estate. From a decree pro forma dismissing the petition, petitioners appealed to the supreme judicial court, and from an order refusing to dismiss the appeal defendants took exceptions. Exceptions sustained.

John A. Morrill and Seth M. Carter, for appellants.

Symonds & Cook, A. A. Strout Charles F. Libby, and A. R. Savage, for appellees.

HASKELL, J. The appellants petitioned the court of insolvency in Androscoggin county to expunge the appellees' proof of debt against the insolvent's estate. To the petition, appellees filed their answer, and proofs were taken, whereupon the judge of insolvency, on the 29th of April, 1892, decreed, pro forma, that the petition be dismissed. Two days afterwards, April 30th, an appeal was taken by the petitioners "to the supreme judicial court now holden at Auburn, within and for said county of Androscoggin, to which term said appeal is to be taken in accordance with the stipulation of parties of record in this court." Notice thereof was ordered by the judge of insolvency, and duly served on the same day. Three days afterwards, May 3d, the appeal was entered in this court, at the April term thereof, that began on the 18th of April, then in session. Two days later, May 5th, the appellees moved to dismiss the appeal for want of jurisdiction, inasmuch as the appeal was prematurely entered, it being by law only authorized to be entered at the next term of court, to wit, September term, 1892. The court refused to dismiss the appeal, and ordered the cause to a hearing, against appellees' protest; and thereupon exceptions were taken and allowed, and appellees filed their answer, not waiving their motion to dismiss. A hearing was had, and the cause reported to this court,—a proceeding unauthorized by law. The exceptions, however, were seasonably certified to the chief justice, who held them for further argument before himself and associates at the July law term.

The supreme judicial court takes jurisdiction of appeals from the decrees of judges of insolvency, by force of Rev. St. c. 70, § 12, that requires all appeals in insolvency to "be taken to the supreme judicial court next to be held within and for the county where the proceedings are pending," giving exceptions in matters of law that must be certified to the chief justice.

It is plain that the appeal was prematurely entered, and should have been dismissed. Clark v. Railroad Co., 81 Me. 477, 17 Atl. Rep. 497. But it is urged that appellees agreed, in writing, that the appeal might be entered at the April term. Be it so. They saw fit to repudiate their agreement, and seasonably, the next day after their appeal was entered, moved to dismiss it. The jurisdiction of the supreme judicial court in such matters is purely appellate, and only exists by force of statute. Consent of parties never gives a court jurisdiction. State v. Bonney, 34 Me. 223; Powers v. Mitchell, 75 Me. 372.

As said by the supreme court of Massachusetts: "The consent of parties to the entry of this appeal at a term of court which was not the time fixed by law for such entry could not give the court jurisdiction of the appeal, and it is accordingly dismissed." Eddy's Case, 6 Cush. 28; Palmer v. Dayton, 4 Cush. 270; Clark v. Railroad Co., 81 Me. 477, 17 Atl. Rep. 497. Want of jurisdiction may be taken advantage of at any time before judgment. Custy v. Lowell, 117 Mass. 78.

A valid appeal vacates a valid decree or Judgment, and, until affirmed...