Palleria v. Farrin Bros. & Smith

• Decision Date: 14 April 1958
• Citation: 153 Me. 423,140 A.2d 716
• Parties: Antonio J. PALLERIA v. FARRIN BROS. & SMITH.
• Court: Maine Supreme Court

Page 716

140 A.2d 716

153 Me. 423

Antonio J. PALLERIA v. FARRIN BROS. & SMITH.

Supreme Judicial Court of Maine.

April 14, 1958.

Harmon & Nichols, Camden, for plaintiff.

William B. Mahoney, James R. Desmond, Lawrence P. Mahoney, Portland, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, SULLIVAN and DUBORD, JJ.

DUBORD, Justice.

This case comes up to this Court on exceptions to the refusal of the presiding justice to grant a motion of the defendant, made at the close of the evidence, to direct a verdict for the defendant; and on general motion.

The plaintiff advances the contention that the motion is not properly before this court because the provisions of Rule XVII, 147 Me. 470, have not been complied with. He argues that the evidence in the case was not signed by the presiding justice, nor certified by him to the Law Court; and that the evidence was not filed within 30 days of the entry of the motion.

The pertinent sections of Rule XVII read as follows:

'Motions made to have a verdict set aside as against the law and the evidence, whether addressed to the presiding justice or to the Law Court, must be filed during the term at which the verdict is rendered but in any case never more than thirty days after the rendition of such verdict, excepting only that such a motion addressed to said Law Court after denial of a like motion by the presiding justice must be filed within ten days after decision adverse to the moving party is filed by the presiding justice.'

'No exceptions lie to the decision of the presiding justice and no appeal except in cases of felony.'

'When such motion is addressed to the Law Court, the party making it shall cause a report of the whole evidence in the case to be prepared, signed by the presiding justice or authenticated by the certificate of the official court stenographer, and filed within such time as the presiding justice shall by special order direct, and, if no such order is made, it must be done within thirty days after the adjournment of the term at which the verdict was rendered or within thirty days after the filing of the motion, whichever is later; if not so done, the motion may be regarded as withdrawn, and the clerk, at a subsequent term, may be directed to enter judgment on the verdict.'

The record indicates that at the close of the evidence, the defendant addressed a motion to the presiding justice praying that a verdict for the defendant be directed. This motion was denied. Exceptions were noted and at that time the presiding justice, by special order, directed that a transcript of the evidence be filed on or before April 30, 1957. The transcript was filed on April 29, 1957. A date was also fixed for the filing of an extended bill of exceptions which bill was filed within the time allowed.

Subsequent to the motion for a directed verdict, the defendant addressed a motion for a new trial pursuant to the provisions of Rule XVII, to the presiding justice. This motion was denied.

Within 10 days after decision adverse to the defendant, a motion for a new trial addressed to the Law Court was filed. This procedure is authorized by Section 60, Chapter 113, R.S.1954, and by Rule XVII. No new order was filed by the presiding justice fixing a date for the filing of the evidence.

Plaintiff argues that by filing a motion for a new trial addressed to the presiding justice, the exceptions previously taken were waived; and as a result of this waiver all prior proceedings were in effect, effaced from the docket, and that it become necessary for the presiding justice to issue a new order specifying a date for filing the evidence. In support of his contention, plaintiff cites Mills v. Richardson, 126 Me. 244, at page 249, 137 A. 689, and Inhabitants of Fort Fairfield v. Inhabitants of Millinocket, 136 Me. 426, at page 428, 12 A.2d 173. Further reference to these decisions will be subsequently made in this opinion.

It now becomes pertinent, we think, to decide whether or not in a civil case, the filing of a motion for a new trial addressed to the presiding justice, constitutes a waiver of prior exceptions, taken to the refusal to direct a verdict, in the light of § 60, Chapter 113, R.S.1954, which authorizes the filing of a motion for a new trial addressed to the Law Court within ten days after an adverse decision on the part of the presiding justice upon the motion addressed to him.

In the very enlightening treatise of former Chief Justice Edward F. Merrill, entitled 'Some Suggestions On Taking A Case To The Law Court' to be found in Volume Forty of the Reports of the Maine State Bar Association, the author had this to say; at Page 197:

'In civil cases a general motion to the presiding justice to set aside a verdict waives exceptions to refusal to direct a verdict. See Mills v. Richardson, 126 Me. 244, 249 where the court said: 'An exception to the refusal to direct a verdict for the defendant is waived by the prosecution of a motion for a new trial before the presiding justice, or otherwise the defendant would be seeking the same remedy through two tribunals, getting the benefit of the second if he failed in the first.' The same rule formerly applied in criminal cases, whether felonies or misdemeanors. Since the case of State v. Bobb, 138 Me. 242 , felony cases are not subject to this rule. This result was based upon the ground that now by statute the decision of the single justice is not final, but an appeal therefrom lies to the Law Court. Whether the change in the statute with respect to the finality of the ruling by a single justice on a motion for a new trial in civil cases, and the allowance of a second motion therefor to the Law Court, will bring about a change in the law of waiver in such cases has not been decided. It is to be noted that in the criminal case the appeal is from the denial of the motion by the presiding justice, while in the civil case the motion to the Law Court is a new, separate and distinct motion and in no way attacks the ruling of the presiding justice. While I neither express nor intimate an opinion on the question, discretion would indicate that if one wished to preserve his exceptions to the denial of a motion for a directed verdict in a civil case, a motion should not be made to the presiding justice to set the same aside. Precaution should be further taken if one did make a motion to the presiding justice in such case and he denied the same, to make a new motion to the Law Court within the 10 days allowed therefor by statute, and not rely alone upon the exceptions to the refusal to direct a verdict, as the medium for obtaining a review by the Law Court.'

The history of the decisions of this Court on the question of waiver is of interest. In the case of State v. Simpson, 113 Me. 27, 92 A. 898; a respondent was under indictment for a misdemeanor. After the State had introduced all its evidence, the respondent requested the presiding justice to direct a verdict in his favor on the ground of insufficient evidence. This motion was denied and exceptions taken. After a verdict of guilty, the respondent filed a motion addressed to the presiding justice to set aside the verdict as against the law and the evidence. This motion was overruled, and exceptions noted. The Court said that a respondent had a right to except to the refusal of the presiding justice to direct a verdict in his favor, and upon denial of the motion, he could have taken exceptions, and in that manner take the case to the Law Court and obtain a decision and opinion as to the sufficiency of the evidence. However, the Court further said, he abandoned that remedy and that course of procedure, and sought the decision and opinion of the presiding justice upon precisely the same question. It follows, the Court said, that exactly the same question was presented to the determination of the presiding justice by the motion which would have been presented to the Law Court on the first exception. The Court ruled that the decision of the presiding justice on the motion was final; that it was a matter within his discretion, and that exceptions did not lie to his ruling. It was pointed out that in a civil case, no appeal lies from the decision of the presiding justice to the Law Court and a defeated party cannot be heard on a motion both before the single justice and the Law Court. He must exercise his option and take one course or the other. And, having exercised his choice is bound by the result.

The Court called attention to the distinction between procedure in the case of a misdemeanor and of a felony. In the latter procedure provision is made by statute for an appeal to the Law Court from the denial of a motion for a new trial by the presiding justice. Section 30, Chapter 148, R.S.1954.

The Court then went on to say:

'This court has frequently held both in criminal and civil cases that the prosecution of a motion for new trial before the presiding justice is a waiver of all rights of exception.' [113 Me. 27, 92 A. 899.]

Several old decisions of this Court were cited in support of this last quotation.

It will be seen from this broad statement that even exceptions taken during the progress of the trial, such as exceptions to the admission of evidence, or exceptions taken to the refusal to give requested instructions to the jury would be waived. Such is not the law now as was pointed out in the case of Labbe v. Cyr, 150 Me. 342, 111 A.2d 330, and the cases cited in State v. Simpson, in support of the foregoing statement are no longer applicable by virtue of statutory changes cited in Labbe v. Cyr, supra.

The next case to be considered is that of State v. Power, 123 Me. 223, 122 A. 572. This was a search and seizure process for intoxicating liquor, a misdemeanor. The jury returned a verdict of guilty. Exceptions were entered by the respondent to a ruling admitting certain testimony, to the refusal to give requested instructions, and also to a ruling overruling a...