Peterson v. Loring

• Decision Date: 01 September 1820
• Citation: 1 Me. 64
• Parties: PETERSON, PLAINTIFF IN ERROR, v. LORING
• Court: Maine Supreme Court

1 Me. 64

PETERSON, PLAINTIFF IN ERROR, v. LORING

Supreme Judicial Court of Maine, Lincoln

September, 1820

Error to reverse a judgment rendered by the Circuit Court of Common Pleas on a report of referees.

The submission was made pursuant to Stat. 1786. c. 21. The referees, having met and heard the parties, made a report in favour of the defendant in error, which, for some cause not apparent on the face of the proceedings, was recommitted. Another meeting was notified, at which the original defendant, now plaintiff in error, and one of the referees did not attend; and the other two referees, certifying that no additional facts were exhibited to them by either of the parties, and that they were satisfied with the former report which all had signed, made a new award of the same amount of debt and costs as before, with additional costs of reference. This report was accepted and judgment rendered thereupon for the original plaintiff, to reverse which the present writ was sued out.

The error assigned was, that the judgment was rendered upon the report of two referees only, made in the absence of the third, without hearing the parties, or any testimony or allegation relating to the same. Plea, in nullo est erratum.

Judgment is affirmed, with costs for the defendant.

Ames, for the plaintiff in error.

It has been often decided that where parties leave the common law remedy, and adopt one provided by statute, the statute must be strictly pursued. It is not enough that a matter in dispute be referred to a tribunal of three persons,--the three must also act upon it; and if it be recommitted, the three must again hear the parties; --which, in the present case has not been done. The Court, therefore, had no jurisdiction of the subject upon which they have undertaken to adjudicate. Jones v. Hacker, 5 Mass. 264. Monosiet v. Post, 4 Mass. 532. Short v. Pratt, 6 Mass. 496.

Orr, for the defendant in error.

Where referees once meet, and have a full hearing of the merits and make a report, which is recommitted, if they all never meet again, it is no error. May v. Haven, 9 Mass. 355. The Stat. 1786. c. 21. gives the Circuit Court of Common Pleas a jurisdiction as extensive as the present case requires. All the requisitions of the statute must be strictly pursued, till the report comes into Court; after which it is to be treated as a rule of Court, and is governed by the principles of the case of May v. Haven. If not, it is in the power of either party, by collusion with one of the referees, to defeat the beneficial purposes of the statute, and completely to oust the Court of its jurisdiction.

In the case of Short v. Pratt the facts are imperfectly stated. It does not appear whether the first report in that case ever was offered the second time, or not; and therefore it wants an essential point of similarity with the case at bar. And so far as the facts are alike, it is overruled by the case of May v. Haven.

The effect of the recommitment of the report is nothing more than the continuance of an action; and if the referees refuse to return the rule, it is a contempt of Court, and punishable by attachment. In the present case they have done all they could do. The three met the parties, heard them, and agreed upon a report. At the solicitation of the losing party, the report was recommitted for farther proof. No such proof being offered, and one of the referees, probably the friend of the plaintiff in error, declining to sit again, the other two return the report, expressing themselves satisfied with it as it was. It is then a report made by all the referees, and the judgment upon it is not erroneous.

Ames, in reply.

It was as important that the third referee should be present at the second meeting, as at the first. His reasonings, and opinions and his general aid were as necessary to the parties and they had as perfect a right to them in the one case as in the other.

As the first report appears correct in all matters of form, it is manifest that its recommitment was because of some improper or irregular proceedings by the referees,--some defect of substance--which being proved to the Court, induced them to send it back for revision. It was then a report refused, and of no force. It could not lawfully be made the foundation of a judgment, otherwise it would have been accepted. All the validity of the judgment in this case arises from the second report; not from the first, which has no more power or virtue than a judgment appealed from.

OPINION

MELLEN, C. J.

Upon the award before us it appears that at the hearing of the parties, on the 29 th day of March 1820 all three of the referees attended, and all of them signed the report, which was presented to the Circuit Court of Common Pleas at April term following, and was then recommitted. It also appears that all three of the referees never met again to reexamine the cause; but that two of them, in the absence of the third, who, as well as Peterson declined or neglected to attend, without any further hearing of the parties, or any farther proof, ratified the report which all had signed, and reported that Loring should recover the sum mentioned in the report of 29th March. The acceptance of this report at the August term following,...