Shurtleff v. Redlon

• Decision Date: 19 March 1912
• Citation: 109 Me. 62,82 A. 645
• Parties: SHURTLEFF v. REDLON.
• Court: Maine Supreme Court

82 A. 645

109 Me. 62

SHURTLEFF

v. REDLON.

Supreme Judicial Court of Maine.

March 19, 1912.

(Syllabus by the Court.)

Exceptions from Supreme Judicial Court, Cumberland County.

Action by Herbert B. Shurtleff against Annie B. Redlon, executrix.Heard on exceptions by plaintiff.Exceptions overruled.

Assumpsit on an account annexed against the defendant in her capacity as executrix to recover the sum of $3,345.15, "and was heard on demurrer to the defendant's brief statement filed with her plea of general issue."The presiding justice overruled the demurrer, and ordered judgment for the defendant, and the plaintiff excepted.The ruling of the presiding justice overruling the demurrer was as follows:

"Demurrer to defendant's brief statement, which serves the purpose of a plea in bar, and the statements in which are agreed to be true.

"The date of the writ is November 28, 1910.Service on defendant, December 2, 1910.By the allegations in the brief statement, it appears that prior to the date of the writ, to wit, November 21, 1910, the defendant filed her petition in the probate court, representing that the claim now sued was exorbitant, unjust, or illegal, and praying for the appointment of commissioners in accordance with the statute.Notice was ordered for a hearing thereon December 7, 1910, and the notice was served on the plaintiffNovember 23, 1910.Commissioners were duly appointed, and, after notice to the plaintiff, they met to hear and determine the claim, and did so against the protest of the plaintiff.The commissioners filed their report in the probate court, and it was accepted.The plaintiff filed notice of an appeal from the award of the commissioners, but did not prosecute his appeal.Upon these allegations I think that after the defendant filed her petition in the probate courtNovember 21, 1910, and in any event after the notice of the hearing thereon was served on the plaintiff, November 23, 1910, the probate court had sole and exclusive jurisdiction to determine in manner provided by statute the validity and amount due of the plaintiff's claim, subject to appeal, and, if this be so, it follows that the Supreme Judicial Court did not have original jurisdiction in this matter at the time this action was commenced.But it is alleged that pending the proceedings in the probate court, to wit, at the January term, 1911, of this court, the defendant filed a motion to dismiss this action on the ground that it was commenced after the petition above mentioned had been filed in the probate court, which motion was at the same term denied.It is contended by the plaintiff that this denial was a judgment which bars or estops the defendant from further setting up the probate proceedings in defense; in other words, that the defendant is concluded by a denial of her motion to dismiss.I do not think so.A motion to dismiss reaches only such defects or defenses as are apparent upon the face of the writ.It is not available to present defenses dehors the writ.It raises no issue as to matters not disclosed by the writ.Upon a motion to dismiss, the court has no jurisdiction to determine any issue upon any matter that is not apparent by an inspection of the writ.In this case the motion to dismiss was properly denied, whatever be the merits or demerits of the action itself, because on the face of the writ there appeared no defects nor defenses, and I must assume that the presiding justice did not go beyond the scope of the motion to dismiss and attempt to decide questions which the motion to dismiss did not properly raise.

"Therefore, the entry will be, 'Demurrer to brief statement overruled,' and, since the parties agree that the facts are correctly and truly stated in the brief statement, a further entry will be: 'Judgment for the defendant'"

Memo.The commissioners appointed by the probate court allowed the plaintiff on his claim $105.51, with $11.34 interest.

The case is stated in the opinion.

Argued before WHITEHOUSE, C. J., and CORNISH, KING, BIRD, HALEY, and HANSON, JJ.

William H. Gulliver, for plaintiff.

Anthoine & Talbot, for defendant.

BIRD, J.This is an action of assumpsit on account annexed, and is here upon exceptions to the overruling of plaintiff's demurrer to defendant's brief statement, filed with her plea of the general issue, and the ordering of judgment for the defendant by the justice presiding at nisi prius.

It appears that, upon plaintiff presenting to defendant a statement in writing of his claim against her testator, the defendant on November 21, 1910, filed her petition in the probate court representing the claim to be exorbitant, etc., and praying the appointment of commissioners to determine the amount to be allowed.A day was appointed for a hearing and notice ordered, service of which was made on plaintiffNovember 23, 1910.On the 28th day of the same November plaintiff commenced this action against defendant, declaring upon the identical claim set out in his written statement, and service was made upon defendantDecember 2, 1910.Seven days later commissioners were duly appointed by the probate court.At the return term January, 1911, the defendant filed a motion to dismiss this action upon the ground that it was commenced after the filing of the petition of defendant for the appointment of commissioners upon the same claim declared on.

On the 9th day of March, 1911, the time appointed for hearing, the plaintiff appeared specially before the commissioners, and filed written objections to a hearing upon the claim on the ground that they had no jurisdiction because of the commencement and pendency of this action.The plaintiff then presented to the commissioners a sworn statement of his claim, introduced evidence in its support, and his case was argued by counsel.March 31, 1911, the commissioners filed their report in the probate court which was on the same day duly accepted and allowed by the court.On the 11th day of April following the plaintiff filed notice of appeal which was ordered filed on the 17th day of said April.

Subsequently, at the October term, 1911, the defendant filed in this action a plea of the general issue and a brief statement substantially setting forth the facts already recited.The plaintiff demurred generally to the plea of the general issue and to the brief statement demurred specially.The demurrer to the brief statement was overruled, and, it appearing that the parties agreed that the facts are correctly stated in the brief statement, the further entry of judgment for defendant was made and plaintiff excepted.

The questions raised by the bill of exceptions to adopt the statement of plaintiff's counsel are, first, the effect of the overruling of a motion to dismiss so called, which contained all the substantial facts which were later made the subject of a plea in bar, to which plea in bar the defendant demurred, and, second, the construction of the following language in section 54 of chapter 66, R. S.:

"No action shall be maintained on any claim so committed unless proved before said commissioners; and their report of all such claims shall be final, saving the right of appeal."

As to the first question, it is urged by plaintiff upon authority of a work of acknowledged excellence that the objection to the suit having once been disposed of cannot be raised in another form.The statement purports to be based upon Cassidy v. Holbrook, 81 Me. 589, 18 Atl. 290;Coxe v. Higbee, 11 N. J. Law, 395;andWitmer v. Schlatter, 15 Serg. & R.(Pa.) 150.In the first case a plea in abatement was overruled for technical error, and exceptions were overruled.The conclusions of the court relied upon to support the text are obiter dicta merely.81 Me. 592, 18 Atl. 290.In Coxe v. Higbee a plea in...