Witzler v. Collins

• Decision Date: 29 October 1879
• Citation: 70 Me. 290
• Parties: Jacob G. WITZLER v. Jason COLLINS & others.
• Court: Maine Supreme Court

70 Me. 290

Jacob G. WITZLER v. Jason COLLINS & others.

Supreme Judicial Court of Maine.

October 29, 1879

ON EXCEPTIONS to the rulings of the superior court, for the county of Kennebec, and motion to set aside the verdict.

ASSUMPSIT against defendants, as owners of the steamer " Star of the East," and as common carriers by water from Boston to Hallowell, for loss and damage of 19 packages of household goods delivered to them for carriage December 9, 1873.

Date of writ February 6, 1877, returnable to the March term 1877. Plea, the general issue.

The material facts, and likewise those portions of the judge's charge excepted to, are sufficiently stated in the opinion. The verdict was for the plaintiff in sum of $312.00. The defendant alleged exceptions and also moved to set aside the verdict.

O. D Baker, (J. Baker with him) for the plaintiff, contended.

1. Rule 28 superior court, Kennebec county, is confined to that court, is under its discretion, so far as its enforcement is concerned, and that discretion is not reversible by this court.

Counsel strenuously contended that the deposition was properly admitted, citing stat. 1878, c. 10, § 10, and, in an elaborate argument against the defendants' exceptions cited Gowdy v. Lyon, 9 B. Mon. (Ky.) 112. Keith v. Amende, 1 Bush. (Ky.) 455. Nelson v. Woodruff, 1 Black. 156, 3 Blatch. 521. Clarke v. Barnwell, 12 How. 272. The Martha, Ole. Adm. 140. Warden v. Grier, 6 Watts 424. West v. Steamboat Berlin, 3 Iowa 532. Benjamin v. Sinclair, 1 Bailey, (S. C.) 174. 1 Greenl. Ev. § 305 and note 2. Hastings v. Pepper, 11 Pick. 41, 43. Barrett v. Rogers, 7 Mass. 297. Shepard v. Naylor, 5 Gray 592. 2 Redf. Rail. §§ 156-174, par. 6, 7. Bochm v. Combe, 2 B. & S. 172. Merritt v. O. C. & N. R. R. 11 Allen 80, 83. Redf. Car. §§ 100, 101. Spring v. Haskell, 4 Allen 112. Cushing v. Wells, 98 Mass. 550. Sedg. Dam. 357, note 1.

L. Clay, for the defendants.

DANFORTH J.

The first exception in this case arises from the admission of the deposition of James L. Wilson, it having been objected to " on the ground that it was not filed at the term for which it was taken." From the caption it appears to have been taken for the June term and from the memorandum of the clerk thereon it was filed at the following September term, at which time the case was tried.

The R. S., c. 107, § 16, provides that depositions when not delivered to the court by the justice taking it, shall be " inclosed and sealed up by him and directed to such court .. and kept sealed till opened by their order," without any specification of time when this shall be done.

The rule of the superior court where this case is pending is as follows: " All depositions shall be opened and filed with the clerk, at the term for which they are taken; and if the action in which they are taken to be used shall be continued, such deposition shall remain on the files, and be open to all objections when offered on the trial, as at the term at which they were opened; and if not so left on the files, they shall not be used by the party who originally produced them, without the permission of the court, but the party producing a deposition may, if he sees fit, withdraw it, during the same term in which it was originally filed, in which case it shall not be used by either party." This language is so clear and explicit as to leave no room for construction, no doubt whatever as to its meaning. The clause without permission of the court refers only to such depositions as have been filed, and by no possible construction can it be made to refer to such as have not been filed. The first clause is supplementary to the provisions of the statute, making that definite and certain which before was left indefinite and uncertain. The statute requires the deposition to be filed without fixing the time, the rule states the time when it shall be done. There is in the rule no provision whatever as to depositions not filed as there is no occasion for any, for, until that is done they are the property of the party taking them, and the court can have no control over them. Webster v. Calden, 55 Me. 172. It is certain then that the ruling in question cannot be sustained on the ground that it was within the discretion of the court, nor does it appear from the case that it was so understood by the presiding justice.

Nor is the claim that the enforcement of a rule made by the court is within its discretion, any more tenable. It may be that a rule adopted solely for the purpose of regulating the proceedings of the court, to render them more simple, methodical and uniform, and when the rights of the parties are not involved, may as in United States v Breitling, 20 Howard, 252, be suspended or modified in their operation, when in the judgment of the court, convenience or justice may require it; or perhaps as in Law v. Law, 4 Me. 167, in certain cases a noncompliance may be excused when caused by accident or mistake, and no injustice can result to the opposing party. But in this case the rule is not for the guidance of the court alone, but regulates as well the proceedings and involves the interests of opposing parties, and there is no suggestion of accident or mistake as the cause of a neglect of its requirements.

Nor in such case can the court waive any of its provisions. That can be done only by the party for whose benefit it was made. Winnisimmet Co. v. Chelsea, 6 Cush. 483. The result is that the superior court, with sufficient authority therefor having made the rule, is bound by its provisions so long as it remains in force precisely as if it had been a statute. Maberry v. Morse, 43 Me. 176; Thompson v. Hatch, 3 Pick. 512; Tripp v. Brownell, 2 Gray 402.

Nor is the superior court the final and conclusive judge of the construction and legal effect of its own rules. Rathbone v. Rathbone, 4 Pick. 92.

It is further contended that even under this construction of the rule the first clause is merely directory and not mandatory. It is true that this clause is not qualified by any words forbidding the use of depositions not filed as required, but it is also true that negative words are not the only test of a mandatory law. This question is fully discussed in State v. Smith, 67 Me. 328, and Boothbay v. Race, 68 Me. 351, and many of the cases are there collected and commented upon. In the former case page 333, it is laid down as a test of the mandatory character of the law when, " from the character of the act to be performed, the manner of its performance, or its effect upon public interests or private rights, it must be presumed that the legislature had in contemplation that the act had better not be performed at all than be performed at any other time than that named." In the latter case on page 354 the test laid down by Dwarris is quoted with approbation, thus, " Negative words will make a statute imperative; and it is apprehended affirmative may if they are absolute, explicit and peremptory, and show that no direction is intended to be given; and especially where jurisdiction is conferred; " and further where the clause relates to circumstances which affect the essence of the thing to be done it is imperative. This last is fully sanctioned by Lord Mansfield in Rex v. Loxdale, 1 Burr. 447.

The clause in question clearly comes within each and all of these tests. The words used are absolute, explicit and peremptory. It commands an act to be done at a specified time by one party, which involves the interests and is intended for the protection of the rights of the other party; and which fails of affording that protection if permitted at a later period. Time is not only of the essence of the act, but so far as the rule goes, is the act itself. The statute provides for the thing to be done, the rule specifies only the time when it shall be done, and if not then done it never can be without rendering the rule of no effect.

But what is more conclusive is the fact that it is only by force of the statute and the rules of court, that depositions can ever be used, instead of requiring the personal attendance of witnesses. If there is any omission of the requirements of the law in taking, if the caption is in any respect faulty, it is rejected without question. Just as important and necessary is it that such provisions as are made to bring it within the jurisdiction and control of the court should also be complied with. Until that is done, it has not those prerequisites required by law to make it evidence, and each one is necessarily a condition precedent to its use. In Maine Stage Co. v. Longley, 14 Me. 447, Shepley, J., says, " It would seem to be the duty of the party proposing to use a deposition to show a compliance with the law and the rules of the court to entitle him to the use of it." The same doctrine is found in Harris v. Brown, 63 Me. 51, and Folan v. Larg, 65 Id. 11.

2. The defendant's counsel seasonably objected to the admission of testimony respecting damage, or loss of goods shipped, or delivered to the defendants at any other time than September 9, 1873, the time alleged in the writ, but it was admitted by the court.

The declaration in the writ contains two counts; but it is conceded that both are founded upon one and the same contract made on the ninth day of September, 1873, by which as is alleged " the defendants, as common carriers by water in consideration that the plaintiff would and did then deliver to them nineteen packages of household goods .. undertook and promised to carry said goods safely and securely from said Boston to said Hallowell." As there is but one contract declared upon and that for the goods delivered on the specified day, it is evident that the defendants would not be liable for the loss of goods delivered at any other time, for such...