Usen v. Usen

• Decision Date: 08 June 1940
• Citation: 13 A.2d 738
• Parties: USEN v. USEN.
• Court: Maine Supreme Court

13 A.2d 738

USEN

v. USEN.

Supreme Judicial Court of Maine.

June 8, 1940.

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On Appeal and Exceptions from Supreme Judicial Court, York County, in Equity.

Suit in equity by Sarah F. Usen against Charles W. Usen to restrain defendant from further prosecuting, in a Florida court, divorce proceedings brought by defendant against plaintiff. From a decree for plaintiff, defendant appeals and brings exceptions.

Exceptions overruled, appeal dismissed, and decree affirmed.

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

John P. Deering, of Saco, and Maurice Caro and George E. Gordon, both of Boston, Mass., for plaintiff.

Jacob H. Berman, Edward J. Berman and John W. Hill, all of Portland, for defendant.

WORSTER, Justice.

On exceptions and appeal in equity. This is a bill in equity brought by a woman residing in this state against her husband, alleged to be domiciled here, to restrain him from further prosecuting, in a chancery court in Florida, a libel for divorce brought by him against her, and now pending there. No other remedy is sought.

This is the second time these parties have been before us. The first time the appeal and exceptions were dismissed without prejudice, and the case remanded for further proceedings, because the record then presented appeared insufficient to confer jurisdiction on this court to determine the issues raised. Usen v. Usen, Me., 11 A.2d 485.

The defendant challenged the right of the plaintiff to maintain her original bill, by a demurrer inserted in his answer. After the demurrer was filed, and before hearing thereon, paragraphs numbered 7, 8 and 9 of the bill were amended. No exceptions were taken to the allowance of the amendments, and no new demurrer was filed.

Objection cannot be made to an amended bill in equity by a demurrer to the bill in its original form.

As was said in Witham v. Wing et al., 108 Me. 364, 81 A. 100, 103: "If they had wished to object to the amended bill by demurrer, they should have filed a new demurrer to the amended bill."

Defendant's exception to the overruling of his demurrer to the original bill cannot be sustained.

But the defendant did not rest his case here. After the demurrer was overruled there was a hearing on the amended bill, answer and evidence.

And thereafterwards it was ordered, adjudged and decreed: "that the Bill of the Plaintiff, Sarah F. Usen, be and hereby is sustained; that a writ of injunction issue, permanently enjoining the defendant, Charles W. Usen, from prosecuting the action for divorce which is now pending in the Superior Court of the Eleventh Judicial Circuit in and for the County of Dade, Florida."

From this decree the defendant appealed.

An appeal from a final decree in equity calls for a review of the whole case, and the appellant is required to present to the appellate court the pleadings, orders, and "all evidence before the court below, or an abstract thereof, approved by the justice hearing the case * * * "; otherwise the appeal cannot be sustained. Revised Statutes, Chapter 91, Section 63; Emery v. Bradley, 88 Me. 357, 34 A. 167; Redman v. Hurley, 89 Me. 428, 36 A. 906; Caverly v. Small et al., 119 Me. 291, 111 A. 300.

In the instant case, neither the "evidence before the court below" nor "an abstract thereof, approved by the justice hearing the case", has been presented.

Evidently counsel attempted to remedy this omission, for it is stated, among other things, in a stipulation signed by them and printed in the record, "that the findings of the Court shall be considered the evidence in the case", but this stipulation does not bear the approval of the sitting justice.

On an appeal in equity, a signed agreement or stipulation of counsel as to what the evidence was at the hearing before the sitting justice, unapproved, cannot be accepted as a substitute for "all evidence before the court below, or an abstract thereof, approved by the justice hearing the case * * * ", which is required by statute to be produced. Sawyer v. White, 125 Me. 206, 132 A. 421, 422.

In the case last cited, the court said: "Counsel have evidently endeavored to make an agreed statement not certified by the sitting justice take the place of a full record. If this was necessary through inability to procure a transcript of the testimony the case falls within the Stenographer Cases, 100 Me. 271, 61 A. 782. Atwood v. New England Tel. & Tel. Co., 106 Me. 539, 76 A. 949. Any abstract of the evidence before the court below must be approved by the justice hearing the case."

Moreover, findings of a presiding justice are not the evidence in a case, but only his conclusions from the evidence.

Therefore, since neither the evidence, nor an abstract thereof approved by the justice who heard the case, has been presented, the defendant's appeal is not properly before us, and must be dismissed.

The defendant, however, relies on the following exceptions: "The Court, although finding that there were no property rights involved, sustained the Bill, ruling as a matter of law that a wife may bring a Bill in Equity against her husband even though no property rights are involved, to restrain her husband from proceeding in an action for divorce in another jurisdiction * * * and to the ruling of law on the part of the Court in sustaining the Bill, the Respondent, being aggrieved, respectfully claims an exception * * *."

But exceptions to findings of fact by a sitting justice in equity, and to rulings made below as to the legal effect of facts found, can only be considered when accompanied by the evidence or an abstract thereof, approved in the manner aforesaid (neither of which is before us); for without the evidence, the correctness of the findings of fact and the legal effect thereof cannot be determined. Therefore, it follows that the defendant's exceptions to such findings and rulings cannot be sustained.

The defendant, however, excepts to the ruling found in the final decree, sustaining the plaintiff's bill, and this exception must be considered as an exception to that decree.

Exceptions lie to the whole or a part of a final decree, under equity procedure in Maine, as regulated by statute. Emery v. Bradley, supra.

But, on exceptions to such final decree, the allegations in the bill must be accepted as stating the case presented, without right to the exceptor to dispute any statement of facts well pleaded, thus presenting for determination only the questions of law involved. Emery v. Bradley, supra.

In the case last cited, it was contended that "the only mode of obtaining a review by the law court of any part of the final decree is by appeal", but Emery, J., in the opinion, said: "The equity procedure act, however, seems to contemplate exceptions to a final decree, whatever may be the general rule. * * * Of course, exceptions to any part of a final decree can only present a question of law. No questions of fact are open for consideration upon exceptions."

That a final decree in an equity case is limited by the allegations in the bill, and must be based thereon, is well settled. Emery v. Bradley, supra; Stover v. Poole et al., 67 Me. 217; Merrill et al. v. Washburn, 83 Me. 189, 22 A. 118. See, also, Buswell v. Wentworth et al., 134 Me. 383, at page 391, 186 A. 803.

Moreover, such final decree must not only be limited by and based upon the allegations in the bill, but the decree must be supported by allegations sufficient in and of themselves to present a case entitling the plaintiff to the relief prayed for in the bill, and granted in the decree.

In considering an exception to a single clause in the final decree in Emery v. Bradley, supra, Emery, J., 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."

A like question is presented here, which must be determined by a consideration of the allegations set forth in the plaintiff's bill.

While to set forth the whole bill would serve no useful purpose, yet, even at the expense of extending the length of this opinion, the greater part of the bill must be printed in order to present the situation as it is alleged to be, and in order that the principles of law involved may be properly applied to the stated case. By a brief summary of parts of the bill, and quotations from other parts, the case presented by the amended bill may be stated as follows:

That the plaintiff and defendant were married in Boston in 1917, (or, as stated in the libel in the Florida case which is made a part of the bill, in 1907,) and lived together in Old Orchard Beach, Maine, for twenty-two years previous to December, 1938, "when the defendant unjustly and without cause wrongfully and wilfully deserted the plaintiff, which desertion has continued up to" the date of the bill, April 11, 1939.

That "no children were born of said marriage".

That they "purchased property in the Town of Old Orchard Beach and constructed and established stores, cottages, apartments and places of amusement, all of which property is now owned by corporation called Usen Amusements, Inc. formed about the year 1931, of which the plaintiff is Treasurer and the defendant President and Manager, and in which the plaintiff and defendant each own four hundred ninety-nine shares."

That they "have had the care, supervision and management of the property, the renting of the stores, concessions, apartments and cottages, the management of a large roller coaster, theater, dance hall, roller skating rink and other property and amusements of varying kinds, the proper and successful management of which requires the full time, personal attention of both the plaintiff and defendant from the first of March to the first of December of each year, and during the balance of the year it is necessary for said ...