Stern v. Fraser Paper, Ltd.

• Decision Date: 06 October 1941
• Citation: 22 A.2d 129
• Parties: STERN v. FRASER PAPER, Ltd.
• Court: Maine Supreme Court

22 A.2d 129

STERN

v. FRASER PAPER, Ltd.

Supreme Judicial Court of Maine.

Oct. 6, 1941.

On Petition to Rectify Errors Dec. 2, 1941. See Words and Phrases, Permanent Edition, for all other definitions of "Waive".

On Exceptions from Superior Court, Penobscot County.

Assumpsit action by Harry Stern against Fraser Paper, Limited. Judgment for the defendant, and the plaintiff brings exceptions.

Exceptions overruled. Motion to rectify denied.

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

Stern & Stern and Harry Stern, all of Bangor, for plaintiff.

Perkins, Weeks & Hutchins, of Waterville, and Henry J. Hart, of Bangor, for defendant.

WORSTER, Justice.

On exceptions by plaintiff in error.

By agreement of parties, the original action of assumpsit, in which it is claimed an erroneous judgment was rendered, was heard during the November Term, 1939, of the Superior Court held at Bangor, within and for our County of Penobscot, by the presiding justice without a jury, without reservation by either party of the right to except in matters of law.

Decision was against the plaintiff, and judgment for the defendant was duly entered on the docket on the last day of that term, shortly before it was finally adjourned; but, according to the record, because of lack of time the clerk did not give the plaintiff notice thereof during the term, and it does not appear that the plaintiff had actual knowledge of the decision until after final adjournment. Immediately after adjournment, the plaintiff presented his bill to the justice who heard the case. The bill was disallowed by written decree, in which it is stated, among other things:

"No right to exceptions was reserved to either party prior to the filing of the decision in the case.

"The Plaintiff has presented exceptions to the findings of the Presiding Justice to the allowance of which objection is made by the Defendant. Under the circumstances I am compelled to disallow the exceptions as presented by the Plaintiff."

The plaintiff claims that the defendant did not raise the point that the right to except had not been reserved, but when the justice ruled that he was "compelled" to disallow the exceptions, there was nothing more that the plaintiff could then do to perfect his exceptions. If, for any reason, the bill should have been allowed, then the disallowance thereof would not have deprived the plaintiff of his right to be heard thereon. He could have proceeded under the provisions of R.S., Chap. 91, § 24, and Rule of Court 40, to establish the truth of his exceptions before the Supreme Judicial Court sitting as a court of law. This he made no attempt to do, and so waived his exceptions, if he had any.

But the plaintiff had no exceptions which were allowable as a matter of right, for the right to except in matters of law had not been reserved by the plaintiff. It is well settled in this state that when, by agreement, a jury trial is waived in a civil action, and a case is heard by the presiding justice during term time, exceptions will not lie to his rulings in matters of law if decision is made and docketed during the term at which the case is heard, as was done here, unless the right to except in matters of law has been expressly reserved. Reed v. Reed, 70 Me. 504; Frank v. Mallett, 92 Me. 77, 42 A. 238.

The plaintiff, however, has brought a writ of error, claiming, in substance and effect, that there were errors in law or fact sufficient to annul the original judgment; and that he can maintain this writ of error because his right of exceptions was waived by his failure to expressly reserve that right, thus leaving no other remedy open to him. The court below ruled otherwise and affirmed the original judgment. The matter is brought here on the plaintiff's exceptions.

In this jurisdiction, a writ of error cannot be maintained in a civil action if the plaintiff in error, being sui juris, had opportunity to have the original case reviewed, either on appeal (Howard v. Hill, 31 Me. 420; Lord v. Pierce et al., 33 Me. 350; Monk v. Guild, 3 Mete, Mass., 372), or on a bill of exceptions (Thompson v. Mason et al., 92 Me. 98, 42 A. 314; Hersey v. Weeman, 120 Me. 256, 113 A. 394), or on a writ of review (Denison v. Portland Company, 60 Me. 519).

So, if the plaintiff in error had opportunity to except to the final decision in the original case, he cannot maintain this writ of error. Did he have such an opportunity? We think he did.

It is the contention of the plaintiff that the original case was decided contrary to the undisputed evidence. Undoubtedly the decision of the presiding justice in a jury-waived case is final and conclusive when supported by credible evidence, but when unsupported by any evidence it is erroneous as a matter of law and reviewable on exceptions, if the right to except has been reserved. Chabot & Richard Co. v. Chabot, 109 Me. 403, 84 A. 892.

That right, however, was not reserved in the case we are considering, and so, at the precise time the case was decided, the plaintiff had no right to except to the final decision, even if it were, as he claims, erroneous as a matter of law. That is not decisive here. Whether the plaintiff had such an opportunity to except as would prevent him from maintaining a writ of error, is not to be determined by merely considering the legal situation of the parties at the precise time the case was decided, but by considering the proceedings in the case as a whole.

Where a defendant, by counsel, appeared in an action pending before a justice of the peace, but voluntarily withdrew before he was defaulted and judgment entered against him, this court, in Howard v. Hill, supra, considered that such defendant had had an opportunity to appeal, and so could not maintain a writ of error. Although, because of his withdrawal, the defendant in that case was not in court at the time judgment was rendered against him so as to appeal therefrom, yet, as the court said, "At the time of his appearance the case was open"; but the opportunity then before him to contest the issues raised, and finally to appeal from any judgment which might be rendered against him, was waived and lost by his own voluntary act before the judgment was entered. See, also, Monk v. Guild, supra.

When the plaintiff in the instant case agreed to a jury-waived hearing of the original action "the case was...