Tibbetts v. Dr. D. P. Ordway Plaster Co.

• Decision Date: 09 November 1918
• Citation: 104 A. 809
• Parties: TIBBETTS v. DR. D. P. ORDWAY PLASTER CO.
• Court: Maine Supreme Court

104 A. 809

TIBBETTS

v. DR. D. P. ORDWAY PLASTER CO.

Supreme Judicial Court of Maine.

Nov. 9, 1918.

Exceptions from Supreme Judicial Court, Knox County, at Law.

Action by Raymond Tibbetts against the Dr. D. P. Ordway Plaster Company. On defendant's exceptions to the allowance of amendment to the declaration. Exceptions sustained.

Argued before CORNISH, C. J., and SPEAR, HANSON, DUNN, and MORRILL, JJ.

O. H. Emery, of Camden, for plaintiff.

J. H. Montgomery, of Camden, for defendant.

CORNISH, C. J. On exceptions by defendant to the allowance of an amendment to the plaintiff's declaration. The writ in question was entered at the September term, 1917, of the Supreme Judicial Court for Knox county. At that term the defendant filed a general demurrer to the declaration. Hearing was had on this demurrer at the next or January term, 1918, the demurrer was sustained, and the plaintiff was given leave to amend; the docket entry being: "Demurrer sustained; plaintiff allowed to amend." No exceptions were taken by the plaintiff to this ruling. At the April term, following, the plaintiff filed an amendment which was allowed by the presiding justice. To this ruling the defendant excepts on two grounds: First, because no exceptions were taken to the ruling of the justice sustaining the demurrer at the January term, and no amendment was then offered and filed; and, second, because the amendment allowed at the April term was wholly new and inconsistent with the declaration, introducing, not an amendment, but a new cause of action.

It is necessary to consider only the first ground. This involves the construction of Rev. St. c. 87, § 36. So much of that section as pertains to the point under consideration reads as follows:

"A general demurrer to the declaration may be filed: * * * but the justice shall rule on it, and his ruling shall be final unless the party aggrieved excepts; and before exceptions are filed and allowed, he has the same power as the full court to allow the plaintiff to amend, or the defendant to plead anew. * * * If the declaration is adjudged defective and is amendable, the plaintiff may amend upon payment of costs from the time when the demurrer was filed."

The defendant's contention is that under this statute only the justice who hears and determines the demurrer can allow an amendment, and it is not within the power of a justice at a subsequent term so to do; that the amendment must be filed and allowed at the same term as the decision on the demurrer is rendered or not at all.

We do not think this is the true interpretation of the language of the statute, and the history of the legislation on this point is both interesting and illuminating.

The original act regulating proceedings on demurrer and permitting amendments, in order to mitigate the severity of common-law pleading, was chapter 211 of P. L. of 1856. This act contemplated that the decision on both points should be made by the law court, and if the leave to amend was granted it should be only upon the payment of the defendant's costs from the time of filing the demurrer until the decision of the law court thereon; the action in the meantime being continued on the nisi prius docket to await the determination of the higher court.

This was enlarged the next year by conferring upon the presiding justice the power to pass upon the demurrer, viz.:

"Whenever a demurrer shall be filed and joined, the presiding justice shall rule thereon, and the ruling shall be final, unless the party aggrieved shall except to such ruling." P. L. 1857, c. 55, § 3.

The provisions of these two statutes were incorporated in the revision of 1857 as chapter 82, § 19. But the power of granting leave to amend was still reserved to the law court. In 1859, however, this power was also conferred upon the presiding justice before exceptions were filed and allowed, viz.:

"In all cases of general demurrer to the declaration after the presiding judge shall rule on the demurrer, and before exception filed and allowed, he shall have the same power to allow the plaintiff to amend or the defendant to plead anew, that the full court has by section nineteen of the chapter to which this is additional." Pub. L. 1859, c. 73.

This act was additional to section 19 of chapter 82 of the R. S. of 1857, before noted.

Since this enactment the presiding justice, when no exceptions are taken, has the same power as formerly the law court alone had, both to pass on the demurrer and on the question whether the plaintiff should be permitted to amend. Subsequent revisions retain this power. R. S. 1871, c. 82, § 19; Rev. St. 1883, c. 82, § 23; Rev. St. 1903, c. 84, § 35; Rev. St. 1916, c. 87, § 36.

In the case at bar the presiding justice at the January term, 1918, sustained the demurrer and gave the plaintiff leave to amend. No exceptions to these rulings were taken. Therefore under the statute...