Richardson v. Wood

• Decision Date: 20 April 1915
• Citation: 113 Me. 328,93 A. 836
• Parties: RICHARDSON et al. v. WOOD.
• Court: Maine Supreme Court

93 A. 836

113 Me. 328

RICHARDSON et al.

v. WOOD.

Supreme Judicial Court of Maine.

April 20, 1915.

Exceptions from Superior Court, Cumberland County, at Law.

Action by Howard T. Richardson and others against Frank W. Wood. On exceptions of defendant. Exceptions overruled.

Argued before SAVAGE, C. J., and CORNISH, BIRD, HALEY, HANSON, and PHILBROOK, JJ.

William Lyons, of Westbrook, for plaintiffs. Hinckley & Hinckley, of Portland, for defendant.

BIRD, J. This is an action of trespass quare clausum to recover damages for the unlawful entry upon the wood lot of plaintiffs and the cutting and carrying away of trees therefrom. The case is here upon exceptions of defendant. The brief of his counsel declares three questions to be presented to this court.

1. "Whether or not after petition has been addressed to the presiding justice, asking that case be dismissed on the ground that suit was brought without authority, or even knowledge of plaintiffs, and the court orders the case to trial, this question would then be a proper matter for the jury to determine the facts under proper pleadings."

The petition referred to does not appear in the record of the case. We Shall assume it to have been a motion to dismiss. A motion to dismiss can be only sustained where the defect is disclosed upon inspection of the writ. So this court has repeatedly held from Upham v. Bradley, 17 Me. 423, 426, to Hubbard v. Limerick W. & L. Co., 109 Me. 248, 250, 83 Atl. 793. The motion, however, was heard by the justice presiding without objection on the part of plaintiffs and overruled. To this ruling defendant took no exceptions.

The defendant then filed the general issue and set up, by way of brief statement, the same matter covered by the motion; that is, that the suit was brought without the authority, consent, or knowledge of several of the joint plaintiffs. Whether Such an objection can ever be set up by brief statement filed with the general issue (Trustees, etc., v Kendrick, 12 Me. 381) we need not determine, as we think it was not open to defendant to do so under the circumstances of this case, for two reasons:

(1) The defendant, without objection of plaintiffs, submitted the issue to the court without reserving the right to exceptions, if, indeed, exceptions lie, and taking none. Having selected his tribunal, he must abide the result.

(2) The defendant is not aggrieved by the joinder, as plaintiffs, of the persons named. The latter made no complaint of their joinder nor asked to be dismissed. The most that is shown is indifference on their part See Cinfel v. Malena, 67 Neb. 95, 100, 93 N. W. 165. See, also, Webster v. Kansas, etc., Ry. Co., 116 Mo. 114, 122, 22 S. W. 474.

2. "Whether or not the jury were liable to be prejudiced or influenced by the statements of the presiding justice, as appears in the printed copy of the case and referred to in the argument"

This court is not certain that it understands what is intended by this inquiry. If it refers to the exceptions to the instructions of the court, they will be considered later. If, however, it refers to statements made from time to time by the presiding justice while the testimony of witnesses was being taken out, contained in 22 pages of record, the court must invoke the familiar rule that where, instead of presenting each ruling or statement by itself, clearly and...