Munsey v. Groves

• Decision Date: 19 September 1955
• Parties: W. Philip MUNSEY, Executor, U/W of Alfred L. Groves v. John GROVES.
• Court: Maine Supreme Court

Page 64

117 A.2d 64

151 Me. 200

W. Philip MUNSEY, Executor, U/W of Alfred L. Groves v. John GROVES.

Supreme Judicial Court of Maine.

Sept. 19, 1955.

James B. Perkins, Jr., Boothbay Harbor, for plaintiff.

John E. Wilson, Damariscotta, for defendant.

Before FELLOWS, C. J., and WILLIAMSON, WEBBER and BELIVEAU, JJ., and THAXTER, Active Retired Justice.

WEBBER, Associate Justice.

Plaintiff brought his bill in equity as Executor setting forth that his testator in his lifetime executed a deed of Maine real estate to defendant, which deed, the plaintiff averred, although duly recorded within a few days, was never delivered to the defendant by the decedent in his lifetime. The prayer of the bill was for injunction to restrain the defendant from disposing of the property. Service of notice in the usual form was made, so the parties stipulate, on the defendant in South Carolina, he being resident thereof. Thereafter counsel for defendant appeared specially and subsequently filed motion to dismiss for want of jurisdiction as to the defendant. This motion was denied and exception taken. The residuary legatee was permitted without objection to intervene as party plaintiff. Later defendant renewed his motion stating additional grounds all related to the lack of jurisdiction. This motion likewise was denied and exception reserved. Defendant has never entered a general appearance nor has he ever abandoned his protest with reference to jurisdiction. He has never pleaded to the merits nor has any hearing on the merits been had. The bill of exceptions informs us that the chief ground of the denial of defendant's motions was that the appearance and pleading through counsel, either specially or generally, to attack jurisdiction automatically gives the court jurisdiction of the person.

We must first consider whether the matter is prematurely before us. Ordinarily exceptions will not be entertained in the Law Court before a case in equity comes up for a final hearing. R.S.1954, Chap. 107, Sec. 26; Whitehouse, Equity Practice, Sec. 617, Page 647; Stevens v. Shaw, 77 Me. 566, 1 A. 743; City of Bath v. Palmer, 90 Me. 467, 38 A. 365. Where, however, it is deemed to be more in the interests of justice that the questions involved should now be determined, and the peculiar character of the questions here presented hardly permits of postponement if any benefit is to be derived from it by the moving party, exceptions may be entertained by the Law Court before final hearing. Stevens v. Shaw, supra; Flint v. Comly, 95 Me. 251, 49 A. 1044; Bean v. Central Maine Power Co., 133 Me. 9, 173 A. 498. Both counsel vigorously urge that here is a case properly within the exception to the usual rule of practice, and we deem it so.

It is not contended here that the service which was made upon the defendant while resident in South Carolina conferred upon the Maine Court any jurisdiction over the person of the defendant such as was requisite to the granting of the injunctive relief sought. See Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. The only issue is whether or not by subsequent action and conduct the defendant voluntarily submitted to the jurisdiction of the court. Devine v. Tierney & Findlen, 139 Me. 50, 27 A.2d 134.

It is true that in actions at law, the common law required that pleas to the jurisdiction which were in the nature of pleas in abatement had to be offered by the defendant in person rather than by attorney. Even in actions at law, however, if the jurisdictional failure was evident upon the face of the record, advantage of the failure could properly be taken by motion to dismiss filed by an attorney under special appearance. Louisville & N. R. Co. v. Industrial Board, 282 Ill. 136, 118 N.E. 483; Pratt v. Harris, 295 Ill. 504, 129 N.E 277. See Smith v. Hunt, 91 Me. 572, 40 A. 698; Emmons v. Simpson, 116 Me. 406, 102 A. 179; Mansur v. Coffin, 54 Me. 314; Thomas v. Thomas, 96 Me. 223, 52 A. 642; Mace v. Woodward, 38 Me. 426; Bryant v. Bryant, 149 Me. 276, 100 A.2d 663.

The approved practice in equity is for defendant's counsel to appear specially and file a motion in writing to dismiss for want of jurisdiction over the person. 'In either case, a motion seems to be the only safe form of pleading to employ in making a special appearance, and where the facts showing the failure of jurisdiction do not appear on the record, they should be set out in the motion and verified by affidavit.' Whitehouse, Equity Practice (State and Federal), Vol. 1, Sec. 185, page 354. In Flint v. Comply, supra, 95 Me. at page 255, 49 A. at page 1046, our Court said: 'If these nonresident defendants had desired to object to the jurisdiction of the court, they should have entered a special or conditional appearance. Such an appearance, made for the purpose of urging jurisdictional objections, is clearly recognized by all courts and works upon practice.' (Emphasis supplied.) And at page 256 of 95 Me., at page 1046 of 49 A., 'The rule is, that when a defendant appears solely for the purpose of objecting to the jurisdiction of the court over his person, such motion is not a voluntary appearance of defendant which is equivalent to service.' The practice was followed and approved in the equity case of Devine v. Tierney, supra. So here the defendant cannot be deemed to have voluntarily submitted to the jurisdiction of the Maine Court by appearing specially by counsel and pressing a motion to dismiss for lack of jurisdiction of the person.

The plaintiff contends that defendant unreasonably delayed filing his motion to dismiss and should be treated as having waived his right to file. He calls attention to the fact that such delay may be fatal in actions of law because of the application of Rule 5 of the Revised Rules of the Supreme Judicial and Superior Courts. Snell v. Snell, 40 Me. 307; Mitchell v. Union Life Insurance Co., 45 Me. 104. We may observe in passing that even in actions at law however, there are exceptions to the application of the Rule in circumstances not unlike these. See Mace v. Woodward, supra; Richardson v. Rich, 66 Me. 249; Dow v. March, 80 Me. 408, 15 A. 26; Central Maine Power Co. v. Maine Central Railroad Co., 113 Me. 103, 93 A. 41. However, the plaintiff cites no case in which a similar limitation has been applied in equity practice and we are aware of none. The plaintiff here cannot attribute inactivity to the defendant alone. If he deemed, as he now contends, that the defendant had appeared and voluntarily submitted to the jurisdiction but had failed to answer, it was open to him to advance the cause by taking appropriate action under the provisions of the Statute (now R.S.1954, Chap. 107, Sec. 15). The plaintiff did not and cannot now complain if a period of time transpired without action by either party.

We think the rights of the defendant crystallized and were preserved by exception as matters stood when the court below first refused to dismiss the action for want of jurisdiction. The subsequent conduct and participation by defendant's counsel displayed no intention to waive the jurisdictional defect, but on the contrary the lack of jurisdiction was vigorously and consistently asserted at every stage of the proceedings. It has been said that once the point is saved by exception, and at least in the...