Nissen v. Flaherty
| Decision Date | 19 December 1918 |
| Citation | 117 Me. 534,105 A. 127 |
| Parties | NISSEN v. FLAHERTY. |
| Court | Maine Supreme Court |
Exceptions from Superior Court, Cumberland County, at Law.
Action by John J. Nissen against Patrick H. Flaherty. On petition to establish the truth of exceptions. Petition dismissed.
Argued before SPEAR, HANSON, PHILBROOK, DUNN, and MOREILL, JJ.
Carroll L. Beedy, of Portland, for plaintiff.
William H. Gulliver and William D. Mahoney, both of Portland, for defendant.
This is a petition to establish the truth of certain exceptions alleged to have been taken to the ruling of the justice of the superior court in the county of Cumberland, and who, upon presentation, refused to allow them.
It is unnecessary to further state the facts in the case, as the question, upon the above statement, becomes one of purely statutory solution.
The question whether the petition comes within any provision of the statute seems to be conclusive upon the defendant. The right to establish exceptions is a statutory proceeding. Neither the court below nor the law court has any jurisdiction or powers beyond the express provisions of the statute. Cole v. Cole, 112 Me. 315, 92 Atl. 174.
This case comes from the superior court in the county of Cumberland. We find no statute which provides for the establishment of the truth of exceptions from either of the superior courts. The petitioner's proceeding is brought under R. S. c. 82, § 55, and Rule 43 of the Supreme Judicial Court (70 Atl. xiii).
In civil cases neither the statute nor the rule purport to cover any proceeding in the superior courts. With reference to the statute it is so specifically held in Cole v. Cole, 112 Me. 316, 92 Atl. 174. Rule 43 was made to carry out the statute. But the rule cannot broaden the statute. Hence, if the statute does not apply, the rule does not. Nor by necessary implication do we find any statute that applies. Prior to 1893 there was no statutory right to establish the truth of exceptions from any court. Chapter 174, Public Laws of 1893, giving the right, amended R. S. 1883, c. 77, § 51. This section applied to a court held by one justice" of the Supreme Court. But, two of the superior courts were established long prior to this date. The omission therefore to include the superior courts must be regarded as intended on the part of the Legislature; and this omission is emphasized by the provision, in the section amended, that "this section applies to criminal proceedings in either of the superior...
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Bradford v. Davis Same
...one who presided. Revised Statutes 1944, Chapter 95, Section 51. ‘The right to establish exceptions is * * * statutory.’ Nissen v. Flaherty, 117 Me. 534, 105 A. 127; Borneman v. Milliken, 118 Me. 168, 106 A. 345. There are three parties to a bill of exceptions-the parties to the suit and th......
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Appeal of Jensen
...the Courts. Sears Roebuck & Co. v. City of Portland, 1949, Me., 68 A.2d 12; Bradford v. Davis, 1947, Me., 56 A.2d 68; Nissen v. Flaherty, 1918, 117 Me. 534, 105 A. 127; Cole v. Cole, 1914, 112 Me. 315, 92 A. 174; Stenographer Cases, 1905, 100 Me. 271, 61 A. 782. Relief of the nature here re......
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Knapp's Estate, In re
...459, 471, 172 A. 826; 'Courts' 14 Am.Jur., 355, Section 150-152. The rule cannot change a statute. The statute controls. Nissen v. Flaherty, 117 Me. 534, 105 A. 127; 21 C.J.S., Courts, §§ 170-172, p. 260, citing Nissen v. The statute relating to practice and procedure in proving a will wher......