S. D. Warren Co. v. Fritz

• Decision Date: 06 March 1942
• Citation: 25 A.2d 645
• Parties: S. D. WARREN CO. v. FRITZ et al. (two cases).
• Court: Maine Supreme Court

25 A.2d 645

S. D. WARREN CO.

v. FRITZ et al. (two cases).

Supreme Judicial Court of Maine.

March 6, 1942.

[Copyrighted material omitted.]

Exceptions from Superior Court, Cumberland County.

Tax abatement proceedings by S. D. Warren Company against Charles W. Fritz and others, assessors of the Town of Gorham. On exceptions to the refusal of the justice presiding at the December term, 1941, of the Superior Court held at Portland, Me., to restore to the docket two separate tax abatement appeals which had been dismissed at a prior term of that court.

Exceptions overruled.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Bradley, Linnell, Nulty & Brown, of Portland, for plaintiff.

Redman, White, Willey & Winslow, of Portland, for defendants.

WORSTER, Justice.

On exceptions to the refusal of the justice presiding at the December term, 1941, of the Superior Court held at Portland, within and for Cumberland County, State of Maine, to restore to the docket of that court, two separate tax-abatement appeals, which had been dismissed at a prior term of that court. Both appeals present the same questions of law, and will be considered together.

The appeals (one covering the 1933 taxes and the other the 1934 taxes) were taken to that court by the S. D. Warren Company, hereinafter called appellant, from the refusal of the tax assessors of Gorham in said county, hereinafter called appellees, to abate the taxes which had been assessed against that company by said Gorham. The appeals were entered at the May term, 1935, and dismissed at the April term, 1938. Up to the time of dismissal, no appearances had been entered for the appellees, and no orders of notice on the appeals have ever been issued.

Nothing further appears to have been done in court in connection with these appeals until the September term, 1938 (the third term after they had been dismissed), when appearances for the appellees were entered on the docket for the first time. At that term, pursuant to the written memorandum of agreement of counsel then filed in the office of the clerk of courts, the following docket entry was made in each of the appeals: "By agreement entry of 'Dismissed' stricken off and case restored to docket." So matters stood until the March term, 1941, when the court, on appellant's motions, continued the matters to the June term following. At that term, new counsel appeared for the appellees, and moved that both appeals be dismissed, alleging, in substance and effect, among other things, that the entry of "Dismissed" was made at the April term, 1938, under a rule of court for want of prosecution, and constituted final judgment; that the appeals "could neither be restored to the docket at a later term by agreement of counsel nor by the Court"; and, having been so dismissed, the power of the court to restore the appeals "to the docket had been exhausted and its jurisdiction thereover lost."

On these motions, hearing was had at the October term of that year, whereupon the court ruled in each proceeding "that the entry of 'Sept. T. 1938, 8 D by agreement entry of "Dismissed" stricken off and case restored to Docket' did not restore the cause to the Docket and give jurisdiction to this Court thereof. For this reason the motion is granted and the appeal ordered dismissed." Apparently appellant's exceptions to these findings and rulings of the court were abandoned, for none are presented here, and the time for filing extended bills of exceptions has expired.

At the November term, 1941, the appellant filed motions that these matters be brought forward and restored to the docket, for the reasons, briefly stated, that they had been "dismissed from the docket on the first day of the April Term 1938 under Rule #41 of the Rules of Court by mistake, the entry of 'Dismissed' being improvident and erroneous"; that such appeals do "not fall within the provisions of Rule #41 of the Rules of Court"; and because no notice of the tax appeal was ordered by the court or by any justice thereof in vacation as required by the provisions of R.S. Chap. 13, Sec. 77. After hearing, these motions were denied by the court, at the December term, 1941, and the matters are brought here on the appellant's exceptions.

It is contended for the appellant that the entries of appearances for the appellees, after the appeals had been dismissed at the April term, 1938, and the participation by their attorneys in the hearings on the motions for continuances at the March term, 1941, cured all defects in process, summons, service and prior irregularities, and was a waiver of all preliminary steps to a hearing on the merits. That contention cannot be sustained. According to the unreversed decision of the nisi prius court at the October term, 1941, which is still binding upon the parties, the entries at the September term, 1938, did not restore the causes to the docket and give jurisdiction thereof to the court. And surely appearances and participation in proceedings over which the court then had no jurisdiction, are ineffective.

It is further contended that the court had power to restore these matters to the docket because it is claimed that the entries of dismissal made at the April term, 1938, were improvident or made in error or by mistake. But these appeals were again dismissed at the October term, 1941, as above stated, because, to repeat, "the entry of 'Sept. T. 1938, 8 D by agreement entry of "Dismissed" stricken off and case restored to Docket' did not restore the cause to the Docket and give jurisdiction to this Court thereof." Whether that decision was based upon the assumption that the entries of "Dismissed" made at the April term, 1938, were made under the direction of the court, and so amounted to a final disposition of the matters; or upon a finding that the entries at the September term, 1938, were made only by agreement of counsel without the sanction of the court, and therefore ineffective, does not appear, unless it is to be inferred from the words "by agreement", that the entries were made only by counsel, without any authority from the court to do so. Whatever may have been the reason, the fact remains that at the October term, 1941, the appeals were dismissed, and it is too late now to attack the validity of those dismissals.

Even if the appellant could challenge the validity of the dismissals at the April term, 1938, yet there is nothing in this record to indicate that the entries of "Dismissed" made at that term were improvident, or made in error or by mistake, as claimed by it, unless inference to that effect can be drawn from the docket entries and papers on file. But they do not show that the dismissal entries made at that April term were made in error or by mistake. On the contrary, the entries appear to have been made intentionally, and are attested by the clerk. The records of the dismissals made by him import verity (Davis v. Cass et al., 127 Me. 167, 142 A. 377; Karrick v. Wetmore, Adm'r, et al, 210 Mass. 578, 97 N.E. 92); and, nothing appearing to the contrary, it is presumed that the entries were made with the sanction of the presiding justice and by his authority (Davis v. Cass et al, supra).

The appellant claims, however, that the record shows, as a matter of law, that the entries "Dismissed" made at the April term, 1938, were improvident, erroneous, and made by mistake. Counsel on both sides have assumed that these appeals were dismissed at that term under Rule 41, and statements to that effect appear in motions filed in these matters. But it is not so stated on the docket. The entry in each appeal is "Dismissed". The reason for dismissal is not stated.

Assuming, however, that the appeals were dismissed under Rule 41, for want of prosecution, then the appellant contends that these appeals do not fall within that rule, and so they were improperly dismissed, because it is claimed that a tax-abatement appeal is not a "case" within the meaning of Rule 41 of the Rules of Court (which is to be found in 131 Me. page 512). We think otherwise.

So far as is pertinent here, that rule is as follows: "Cases, including libels for divorce, remaining on the docket for a period of two years or more with nothing done shall be dismissed for want of prosecution unless good cause be shown to the contrary."

It is pointed out for the appellant that the rule was amended in 1933, so as to include libels for divorce, from which it is apparently inferred that such libels are not "cases" and so the word "cases" is not used in the rule in a sense broad enough to include such statutory proceedings as tax-abatement appeals. It is unnecessary to decide whether a libel for divorce is to be classed as a "case" or not, or to decide why those words were added. It may be said, however, that even before the amendment to the rule in 1933, this court said, in Harmon v. Harmon, 131 Me. 171, 159 A. 856, that "under our laws a libel for a divorce is regarded as a proceeding in a civil cause." And, as early as 1847, it was said, in Gold v. Vermont Central R. R. Co., 19 Vt. 478, that case in common parlance "has a more extended meaning than the word...