Sawyer v. White

• Decision Date: 09 March 1926
• Citation: 132 A. 421
• Parties: SAWYER v. WHITE.
• Court: Maine Supreme Court

132 A. 421

SAWYER

v. WHITE.

Supreme Judicial Court of Maine.

March 9, 1926.

On Appeal from Supreme Judicial Court, Piscataquis County, in Equity.

Bill by Howard F. Sawyer against Arthur O. White. From a decree for plaintiff, defendant appeals. Appeal dismissed, and decree modified, and, as modified, affirmed.

Argued before WILSON, C. J., and PHILBROOK, MORRILL, STURGIS, and BASSETT, JJ.

Leon G. C. Brown, of Milo, and John S. Williams, of Guilford, for appellant.

Hudson & Hudson, of Guilford, for appellee.

MORRILL, J. The plaintiff is assignee of one R. Irving Wood under a common-law assignment for the benefit of creditors, dated May 23, 1923. Wood was the plaintiff in a cause in equity against this defendant in which an opinion was rendered by the law court, reported in Wood v. White, 122 A. 177, 123 Me. 139. The decree, from which that appeal was taken, adjudged that the defendant holds "one undivided half of the real estate as described in said bill in trust for the plaintiff, the said R. Irving Wood"; that a master be appointed to determine the sum which Wood shall pay to White to equalize their interests in the cost of said real estate; and that upon tender of the amount so found "the defendant shall make, execute, and deliver to the plaintiff a deed of an undivided one-half part of said real estate."

The plaintiff in this bill seeks to compel a conveyance to himself, upon payment of the amount found due to White, of the real estate declared by the decree in the former suit to be held in trust by White for Wood. The bill contains fourteen charging paragraphs, the first two of which, alleging the common-law assignment and plaintiff's acceptance of the trust, must be considered as admitted, being neither admitted nor denied by the answer. The allegations of the other paragraphs are denied. The cause was heard by a single justice, who sustained the bill and ordered a conveyance in accordance with the plaintiff's contention. The defendant appealed and presents in this court as a record a statement which counsel, over their signatures, stipulate "as a record, in the hope that it may be found intelligible for the deciding of the indicated issues, and are requesting the clerk to forward it." In this statement of two printed pages the counsel have undertaken to state in very abbreviated form the proceedings in the former suit, the nonperformance of the decree in that suit by White and the contentions of the parties in this suit. It is obvious upon reading the statement that if the defendant contends that the plaintiff's claim under the decree in Wood v. White, 122 A. 127, 123 Me. 139, cannot be supported by the allegations of the bill in that cause, and that those allegations are conclusive, a bill of exceptions is the appropriate mode of protecting his rights. But we learn from the statement that parol evidence was introduced at the hearing before the sitting justice for a stated purpose. Whether or not parol evidence was introduced for other purposes does not appear. A transcript of the evidence is not made a part of the "counsel stipulated record" before us, and for that reason the appeal must be dismissed.

The instant case is clearly within the rule stated in Caverly v. Small, 111 A. 300, 301, 119 Me. 291, 294. "No exceptions, however, were filed. Instead an appeal was taken, and an appeal in equity, like a general motion for a new trial in an action at law, carries with it necessarily all the evidence in the case. * * * Its absence is ground for dismissal." In a very recent case, where no evidence was transmitted to this court, a dismissal was ordered "in accordance with the well-established rules of equity practice." De Pietro v. Modes, 126 A. 575, 124 Me. 132. R. S. c. 82, § 32. Counsel have evidently endeavored to make an agreed statement not certified by the sitting justice take the place of a full record. If this was necessary through inability to procure a transcript of the testimony, the case falls within the Stenographer Cases, 61 A. 782, 100 Me. 271. Atwood v. New England Tel. & Tel. Co., 76 A. 949, 106 Me. 539. Any abstract of the evidence before the court below must be approved by the justice hearing the case. Section 32, supra.

Upon an examination, however, of the proceedings taken in the former case of Wood v. White after the decision of this court reported in 122 A. 177, 123 Me. 139, which by stipulation of the parties are before us, it is clear that the present contention of the defendant is without merit; that, had approved equity procedure been followed in that case, the present action would have been unnecessary.

The appeal in the former case was prematurely presented to the law court. The decree from which that appeal was taken, although entitled a final decree, was not such a decree, and the appeal therefrom should have awaited the final decree. R. S. c. 82, § 24.

A final decree is one which fully decides and disposes of the whole case, leaving no further questions for the future consideration and judgment of the court. Gilpatrick v. Glidden, 19 A. 166, 82 Me. 201, 203; 1 Whitehouse, Eq. Pr. § 399. A decree is final which provides for all the contingencies which may arise and leaves no necessity for any further order of the court to give all the parties the entire benefit of the decision. Gerrish v. Black, 109 Mass. 474, 477. No decree is a final one which leaves anything open to be decided by the court and does not determine the whole case. Forbes v. Tuckerman, 115 Mass. 115, 119. A decree, to be final for the purposes of appeal, must leave the case in such a condition that, if there be an affirmance, the court below will have nothing to do but execute the decree already entered. Bank of Rondout v. Smith, 15 S. Ct. 358, 156 U. S. 330,...