Coney v. Maling

71 A. 887, 104 Me. 332, 1908 Me. LEXIS 65

• Court: Supreme Judicial Court of Maine
• Decided: September 10, 1908
• Status: Published

Opinion

Savage, J.

At the trial of this case at the December term, 1907 in Sagadahoc County, the verdict was for the defendant. The plaintiff’s attorney did not request to be heard in costs during the term. After adjournment, the clerk taxed the costs, whereupon the plaintiff’s attorney orally notified the clerk that he desired to appeal, but he filed no appeal in writing. He made no effort to have the matter heard by the Justice who presided at the December term, or by any other Justice in vacation. He presented the matter to the Justice who presided, at the following April term, who ruled that he had no jurisdiction to entertain the appeal, that it was not properly taken, and ordered it dismissed. To this ruling the plaintiff excepted.

We think the ruling was right. The plaintiff took no appeal. Giving the clerk in vacation oral notice of his desire to appeal was not sufficient. An appeal from the taxation of costs is a part of a judicial proceeding, and becomes a part of the record. From the very nature of the thing it must necessarily be evidenced by a writing. Otherwise, no record of it can be made. Nor can the Justice to whom an appeal in vacation is made act judicially except upon a written appeal signed by the party or his attorney. Such a procedure is not permissible.

Exceptions overruled.