Powers v. Mitchell

• Decision Date: 02 August 1883
• Citation: 75 Me. 364
• Parties: SERENA L. POWERS v. THOMAS MITCHELL.
• Court: Maine Supreme Court

75 Me. 364

SERENA L. POWERS v. THOMAS MITCHELL.

Supreme Judicial Court of Maine.

August 2, 1883

ON EXCEPTIONS.

This is an action of the case to recover damages in the sum of ten thousand dollars for personal injury alleged to have been sustained by the plaintiff in consequence of the defendant's negligence in causing a collision of sleighs in which the parties were respectively riding in the public street in Augusta, December 29, 1879. The writ was dated on the ninth day of January, A. D. 1880, and entered in the March term, 1880, of this court in Kennebec county, where three trials have been had. At the March term, 1882, the plaintiff filed a motion for change of venue, and on the last day of the term, being the 29th day of March, an entry was made, " Motion for change of venue continued nisi. " And on the 7th day of April, following the clerk of the court in that county received the following order from the justice presiding at the March term:

" State of Maine. Kennebec, ss. Supreme Judicial Court. March Term, A. D. 1882.

In the civil action pending in said Court, being No. 125 upon the docket thereof, wherein Serena L. Powers is plaintiff and Thomas Mitchell is defendant, on plaintiff's motion filed on the thirteenth day of the term, and for good and sufficient reasons shown to the Court, it is--

Ordered That said action be and the same hereby is transferred to the docket of said Supreme Judicial Court, in the county of Cumberland, in said State of Maine, for trial."

The action was thereupon entered upon the docket of Cumberland county, and on the second day of the first term (April term 1882,) in that county, the defendant filed a motion to dismiss " from the docket of the court in said county of Cumberland" because it was improperly transferred and for want of jurisdiction. The exceptions were to the decree of the court in overruling this motion.

C. W. Goddard and A. M. Spear, for the plaintiff.

Defendant's exceptions are prematurely and improperly here and must be dismissed.

When a dilatory plea is overruled and exceptions taken, the court is to proceed and close the trial, and the action shall then be continued and marked law, & c. R. S., c 77, § 22.

Cases should not be entered at the law court on exceptions until they are in a condition to be finally disposed of if the exceptions are overruled. State v. Inness, 53 Me. 541.

The motion to dismiss for want of jurisdiction is in the nature of a dilatory plea, overruling it did not end the suit, but kept it in court for future proceedings. In such case the exceptions should await the final disposition of the case. The court should have proceeded and closed the case, and then if plaintiff was aggrieved, it should have been marked law and continued. It is improperly entered on the law docket. Day v. Chandler, 65 Me. 367.

Such exceptions must be filed at the time when the proceedings complained of are had, should remain in the court where the action is pending, until it is ready for final disposition, and come here, if at all, at the same time with other exceptions raised at the trial, if any, or when the case is in such a position that an adjudication upon them is necessary for a final determination of the rights of the parties. Cameron v. Tyler, 71 Me. 28.

The docket of this case in this county shows that the action was regularly and legally transferred to this county. If the defect or error which defendant alleges is not apparent on the face of the record, it should have been taken advantage of by plea in abatement as insisted on by plaintiff's counsel at the time he filed his motion. 36 Me. 388; Spaulding's Practice, page 160, § 6.

The presiding justice had ample authority both at common law and by express statute to order the transfer. Indeed it is made his duty to issue such order when good and sufficient reasons are shown. 1872, c. 45.

What does the docket, cleared of extraneous papers show?

First, That plaintiff duly filed her motion for change of venue on the thirteenth day of the March term, (March 28,) 1882.

Second, That at said term the motion was granted and for good and sufficient reasons shown to the court the transfer of the action was ordered as prayed for.

Third, That on the fourteenth day of the term (March 29), the motion for change of venue was " continued nisi. "

Fourth, That on said fourteenth day the general order for the continuance was issued and the court finally adjourned.

Fifth, That the " order" was " received from Judge WALTON to enter (as of March term) ‘ motion allowed, action transferred to Cumberland county docket for trial as per order on file.’ "

It will be observed that the docket sufficiently and unequivocally shows the two main facts, the filing of plaintiff's motion and the order of the presiding justice thereon, both at the March term, 1882. If those two entries stood alone, there could be no excuse for cavil. Are they invalidated by the presence of the other entries? Even if there were any conflict between them, the court would undoubtedly endeavor to give effect to the docket as a whole, and the final order of March term, 1882, which is beyond controversy the main entry, must control the interlocutory and subordinate ones. But there is no real conflict. What does the entry " continued nisi " mean? Beyond dispute it means " " " continued unless" some alternative lawful disposal shall be made of the matter under continuance prior to the term to which it will otherwise be continued.

What that alternative in any given case may be will depend on the facts in the case so far as they may appear. What the alternative in this case was, there can be no doubt, viz:--" motion continued" to the next October term of this court for this county " unless" before that time the case shall, during vacation, be transferred by the justice holding the present March term for said county, as of said term, on said motion, to the docket of this court for the county of Cumberland. No ingenuity can essentially alter the legal interpretation of that entry, " continued nisi. "

Defendant contends that the law does not authorize the transfer at the time and in the manner made (1872, c. 45), the point being that the actual " order" was not received, and the entry in fact spread upon the docket until nine days after final adjournment of the March term. But the record shows that the entry " " continued nisi " was actually made by the justice " while holding a nisi prius term of said court for the trial of civil and criminal cases, upon plaintiff's motion" filed at said term after a third trial and disagreement of the jury; of this there is no question.

It is too late to question the authority of the court after adjournment to complete entries which the pressure of business during a nisi prius session has rendered it impossible to finish in term time. It has been the immemorial practice of the justices of this court not only in person, but by the clerks of the court under their direction and authority. Instances are innumerable and some of them relate to matters of the gravest importance, such as the signing of exceptions and certifying to evidence on motions for new trial, completing the records of sentences from the pencil minutes on the backs of indictments, & c.

Orville D. Baker, for the defendant, cited: Hawkes v. Kennebec, 7 Mass. 463; Lincoln v. Prince, 2 Mass. 544; Cleveland v. Welsh, 4 Mass. 591; Newman v. Hammond, 46 Ind. 119.

APPLETON C. J.

This action was pending on the docket of the Supreme Judicial Court for Kennebec county. On March 28, 1882, being the thirteenth day of the term, the plaintiff filed a motion for the transfer of the action to the docket of another county, in which he alleged good and sufficient reasons therefor. The parties were heard on the motion. On the next day this entry, under the action, was made, " motion continued nisi, " and the court adjourned finally and the term was closed.

Nine days after the adjournment, and in vacation, an order was received from the justice before whom the motion for the transfer had been heard, that an entry be made under the action, that the same be transferred to the docket of the Supreme Judicial Court, for the county of Cumberland, for trial, Thereupon such entry was duly made at that date, as of the preceding March term.

The above facts appear of record in the papers filed, and the question presented for adjudication is, whether this suit has been transferred in accordance with the provisions of the statute of 1872, chapter 45, which confers upon a judge holding a nisi prius term, the power to order the transfer of an action from the docket of the county in which it is pending to that of another county for trial.

The statute on the subject, to which reference has been had, is in these words: " That it shall be the duty of any judge of the Supreme Judicial Court for this state, while holding any nisi prius term of said court for the trial of civil or criminal causes, to order for good and sufficient reasons shown, on motion of either party, the transfer of any civil action, or criminal case now pending or hereafter to be brought in said court to the docket of said court in any other county in this state, for trial."

The action having been made originally returnable to the Supreme Judicial Court, at a term holden in Kennebec county, this court sitting in Cumberland county could have no jurisdiction over the same, except by virtue of a transfer in...