Semo v. Goudreau
| Decision Date | 24 July 1950 |
| Citation | 145 Me. 251,75 A.2d 376 |
| Parties | SEMO v. GOUDREAU et al. |
| Court | Maine Supreme Court |
Frank T. Powers, Frank M. Coffin, Lewiston, for appellants.
Louis B. Lausier, William P. Donahue, Biddeford, for plaintiff.
Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY and WILLIAMSON, JJ.
The present proceeding was commenced by a Bill in Equity seeking the reformation of a deed given by the plaintiff to the defendants on the grounds of mutual mistake by the parties. Answer by the defendants was seasonably filed and subsequently a replication by the plaintiff and, after hearing, according to the docket entry, the Bill was sustained and thereafter, but before the final decree was made, entered and filed, defendants claimed an appeal by an entry on the docket of the court. It does not require citation of authorities that the claiming of an appeal before a decree is made, entered and filed is not a notice of appeal[145 Me. 252] --there being no decree on file upon which an appeal could be claimed. Later, a final decree was filed sustaining the bill and granting injunctive relief. An appeal from this decree, according to the docket, was filed and entered February 17, 1950, which was almost two months from the date of the filing of the final decree, said filing date being December 20, 1949. Rev.Stat. (1944) Chap. 95, Sec. 21 provides for equity appeals and reads in part as follows:
It is apparent from the record in this proceeding that the appeal in this case was not seasonably filed in accordance with the above statute. Regardless of the statute last quoted, it is claimed by the defendants that Equity Rule 28, was not complied with in that no notice of the filing of the final decree was given said defendants as required by said Rule which reads in part as follows:
'When a party is entitled to a decree in his favor, he shall draw the same and file it, and give notice.
The defendants further claim that the decree does not follow the allegations of the bill and that it grants relief for a ground not set forth in the pleadings and, therefore, is a nullity and may be attacked collaterally and should be vacated on appeal where apparent from the record. However meritorious the claims of the defendants with respect to the omission of the plaintiff to follow said Equity Rule 28 and the failure of the final decree to follow the allegations of the bill may be (and it should be understood that upon these matters we express no opinion), there is at the very outset of this proceeding before this court a fatal defect in the proceedings which is vital and cannot be cured. This defect is the failure of the defendants to comply with Rev.Stat. (1944) Chap. 95, Sec. 31, which provides in part as follows:
'All evidence before the court below, or an...
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McGilvery v. McGilvery
...of the case the rule that an appeal must be dismissed for want of the evidence or an abstract thereof is not applicable. Semo v. Goudreau, 145 Me. 251, 75 A.2d 376, same case 147 Me. 17, 83 A.2d 209. Since the appeal was not otherwise effective, there was no need for the evidence or If all ......
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Semo v. Goudreau
...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 ......
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Papapetrou v. Edgar
...are entirely and exclusively those plainly conferred by statute. Gerrish v. Lovell, 146 Me. 92 72 A.2d 593 (1951); Semo v. Goudreau, 145 Me. 251, 75 A.2d 376 (1950); Sears, Roebuck and Company v. City of Portland, et al., 144 Me. 250, 68 A.2d 12 (1949); and Carroll v. Carroll, 144 Me. 171, ......