Semo v. Goudreau

• Decision Date: 22 August 1951
• Citation: 83 A.2d 209,147 Me. 17
• Parties: SEMO v. GOUDREAU et al.
• Court: Maine Supreme Court

Page 209

83 A.2d 209

147 Me. 17

SEMO v. GOUDREAU et al.

Supreme Judicial Court of Maine.

Aug. 22, 1951.

Lausier & Donahue, Biddeford, for Semo.

Frank Coffin, Frank T. Powers, Lewiston, for Goudreau.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.

NULTY, Justice.

This action, which was originally commenced by a bill in equity seeking the reformation of a deed given by the plaintiff to the defendants on the grounds of a mutual mistake by the parties, is before us for a second time--this time on exceptions to the ruling of the justice below granting the issuance of an execution upon a petition for execution which petition in turn alleges that it is based upon the final decree sustaining the plaintiff's bill and ordering, besides other relief, the defendants to forthwith pay to the plaintiff the sum of five hundred dollars with costs.

This litigation, up to the present time, has pursued rather an unsatisfactory course, due, apparently, to the fact that numerous errors of procedure were made in the original proceedings, some of which were referred to in our former opinion. See Semo v. Goudreau, 145 Me. 251, 75 A.2d 376. We held in that case, which purported to be an equity appeal, that the failure to furnish this court with the evidence before the court below or an abstract thereof, approved by the justice hearing the same, was a fatal defect and was both mandatory and jurisdictional under the provisions of Revised Statutes 1944, Chap. 95, Sec. 31. This necessitated the dismissal of the appeal, although the appeal in that case attempted to raise some of the same questions that appear in this proceeding which is brought forward to this court on exceptions. An examination of the docket entries set forth in the record discloses that in addition to the fatal defect before mentioned the attempted equity appeal was not seasonably filed under our Statutes. We now have before us a petition for execution based upon a finding in the final decree which final decree is sharply attacked by an answer of the defendants who vigorously assert that the final decree contains findings that vary from and fail to follow the allegations of the bill of complaint. The particular finding that the defendants attacked in the final decree of the court sustaining the bill and ordering the reformation of the deed to the land in question contains the following language: 'that said defendants, contrary to equity and good conscience, are guilty of fraud and have no legal or equitable claim to the land and building * * *.' Hearing was had on the petition for execution and answer before the same justice who presided at the first hearing and the petition for execution was granted and exceptions allowed. No attempt, so far as the record shows, was made to amend the original bill of complaint which sought relief by way of reformation of a deed solely on the ground of mutual mistake of both parties.

The defendants contend that a final decree under our law must follow and be based upon and confined to the allegations of the complaint and that any decree not based on such allegations is a nullity and that if the decree is a nullity it can be attacked by collateral proceedings such as those of the instant case.

Under the law of Maine fraud, if found in any proceeding, should be, according to our court in Parlin v. Small, 68 Me. 289, 291: '* * * based upon testimony that is clear and strong, satisfactory and convincing.' In Chadwick v. Starrett, 27 Me. 138, 145, we said: 'Fraud is not to be presumed, but must be distinctly and particularly set forth, and be supported by corresponding proof.' In Stevens v. Moore, 73 Me. 559, 563, we said: 'It must now be considered as well settled that a general charge in a case where fraud is relied upon is insufficient. Here the evidence to be introduced, or the minute facts which are important only as they bear upon others which are relied upon, need not be recited; but those which constitute the fraud and enough to show that a fraud was committed or attempted must be alleged. Story's Eq.Plead. Sec. 251.'

An examination of the authorities discloses that this court early considered some of the questions raised by the present proceeding and in Scudder v. Young, 25 Me. 153, 155, which was a case in which the equity court was asked to grant relief where the allegation was fraud and fraud had not been proven, we said: '* * * The Court can grant relief only secundum allegata et probata.' In the instant case the pleadings place in issue mutual mistake and there is no definite allegation of fraud.

In Stover v. Poole, 67 Me. 217, 222, we said: '* * * Hence in any suit, whatever may be the pleadings, the judgment must depend upon the effect of the plaintiff's allegations and be in accordance with them.'

In Merrill v. Washburn, 83 Me. 189, 191, 192, 22 A. 118, we said:

'Good pleading is as essential upon the equity side as upon the law side of the court. Full, clear, direct, and orderly statements are required by the chancery rules, and by the very nature of equity procedure. Equity decrees must be based upon the allegations in the bill. Prayers for relief must be unavailing, unless preceded by allegations showing a complete case, authorizing the exercise of equity jurisdiction. The most ample evidence is useless without sufficient statements in the pleadings. Evidence without allegations is as futile as allegations without evidence. Grosholz v. Newman, 21 Wall, 481 .

* * *

* * *

'Bills in equity, seeking relief on the ground of fraud, accident, or mistake, must directly charge the grounds relied upon. The statement should be so full and explicit as to show the court a clear picture of the particulars of the fraud; the manner in which the party was misled or imposed upon; the character and causes of the accident or mistake, and how it occurred. Without such a statement in the bill, the court cannot grant relief, or even hear evidence in the matter. United States v. Atherton, 102 U.S. 372, ; Scudder v. Young, 25 Me. 153; Stover v. Poole, 67 Me. 217; Stevens v. Moore, 73 Me. 559.'

In Emery v. Bradley, 88 Me. 357, 360, 34 A. 167, 168, we said: 'The question of law presented by the exception is evidently this: Whether the plaintiff's bill contains allegations sufficient to support that clause of the final decree excepted to. It is an elementary principle that no final decree can be extended beyond the allegations in the bill. Decrees in equity must be secundum allegata, as well as secundum probata.' See also Buswell v. Wentworth, 134 Me. 383, 391, 186 A. 803; Portland Terminal Co. v. Boston & Maine Railroad, 127 Me. 428, 431, 439, 144 A. 390. In Hagar v. Whitmore, 82 Me. 248, 256, 19 A. 444, 447, we said, speaking of the claim of the complainant that there should be a decree against the defendants on a ground not alleged in the bill: 'These questions were nowhere raised in any of the pleadings, and the respondents objected to much of the evidence concerning them, and insisted at the argument that they could not properly be determined in this suit. While in equity procedure all (except dilatory) pleadings are construed liberally in furtherance of the cause, yet prop...