Royal Ins. Co. v. Nelke

• Decision Date: 23 September 1918
• Parties: ROYAL INS. CO. v. NELKE.
• Court: Maine Supreme Court

104 A. 626

ROYAL INS. CO.

v. NELKE.

Supreme Judicial Court of Maine.

Sept. 23, 1918.

Exceptions from Superior Court, Androscoggin County.

Action by the Royal Insurance Company against Arthur W. Nelke. Defenses overruled, and defendant brings exceptions. Exceptions dismissed.

Argued before CORNISH, C. J., and SPEAR, HANSON, PHILBROOK, DUNN, and MORRILL, JJ.

Ralph W. Crockett, of Lewiston, for plaintiff.

McGillicuddy & Morey, of Lewiston, for defendant.

SPEAR, J. This is an action of replevin for the possession of an automobile. The facts are briefly as follows: Mr. William T. Ruhl of Boston was the owner of a Buick car. On the 4th day of December his sister drove the car into the city, left it in the street unlocked, and it was stolen. The car was insured against theft in the Royal Insurance Company. The company was notified, investigated, and at the time for payment paid the policy, and took from the owner a subrogation receipt, and also an absolute bill of sale of the car. This bill of sale vested the title of the ear in the plaintiff company. It is contended that the failure of Miss Ruhl to lock the car, as required by the Massachusetts statute, was an act of negligence that would have excused the company from paying the policy.

It is further contended that the car was not licensed and was a trespasser on the road.

These defenses were urged as conclusive of the plaintiff's right of recovery.

The presiding justice, however, overruled these contentions, and the defendant excepted. While the decision of the case is necessarily based upon other grounds, it is a satisfaction to observe that the verdict was warranted upon the testimony.

But the ground upon which the case must be considered involves the rule of fixing the time of presenting exceptions. The plaintiff filed a motion to dismiss the exceptions because they were not seasonably filed or presented to the presiding justice. There is no dispute about the facts stated in the motion, viz.:

"Under rule 22 of the superior court for Androscoggin county, exceptions must be presented to the presiding justice at the term at which they are taken or within 10 days after the adjournment of the term. The case was tried and verdict rendered April 12th. The April Term adjourned April 15th. The exceptions were not filed or presented to the presiding justice for allowance, or to counsel for the plaintiff for examination, until June 17th, 66 days after verdict, and 63 days after adjournment of the...