Hunter v. Heath

76 Me. 219, 1884 Me. LEXIS 42

• Court: Supreme Judicial Court of Maine
• Decided: June 3, 1884
• Status: Published

Opinion

Walton, J.

This case is before the law court on exceptions. It is a writ of error, and the exceptions state that when the action came up for a hearing, the defendants filed a motion to dismiss the action, and that the court granted the motion and ordered the action dismissed. On what ground the motion was sustained is not stated in the bill of exceptions; and, on inspection of the writ, we fail to see any ground on which such a motion could be rightfully sustained. It contains an assignment of errors, which, if sustained by proof, would be sufficient cause for reversing the judgment; and, of course, no proof could be offered, or considered by the eourt, on a mere motion to dismiss. Such a motion lies only to some defect which can be seen on inspection .of the writ alone. It does not lie when, to support or resist it, proof is necessary dehors the writ. Badger v. Towle, 48 Maine, 20; Chamberlain v. Lake, 36 Maine, 388.

A motion to dismiss is not a proper plea on which to raise an issue of fact for the court or the jury. And.if it were,, the exceptions in this case do not show that any proof was offered in support of the motion or considered by the court. The record of the judgment in the original suit is not made a part of the bill of exceptions, and it does not appear that it was seen or acted upon by the judge at nisi prius. Consequently, it cannot properly be seen or examined by the law court; for it is no part of the case as made up for the law court. The exceptions are very brief, and some error may have occured in making up the case. But the law court can act upon it only in the form in which it is presented. As the case is presented the ruling at nisi priiis appears to have been incorrect, and the exceptions must be sustained.

Exceptions sustained.

Peters, C. J., Daneorth, Virgin andLibbey, JJ., concurred.