Berry v. Sands , 60 Me. 99 ( 1872 )

Appleton, C. J.

On Dec. 5, 1870, the parties to this litigation entered into a statute submission to certain referees therein named, in and by which it was provided that ‘judgment rendered on their report or that of a majority of them, made to the supreme judicial court within and for the county of Cumberland, next .to be holden at Portland on the second Tuesday of January, 1871, shall be final.’

The report of the referees, dated Jan. 8, 1872, was returned to the January term, a. d. 1872, of the supreme judicial court for the county of Cumberland, and filed on the sixth day of said term.

The jurisdiction of this court over awards under a statute submission, is created entirely by statute and can only be exercised in conformity with its provisions. Sargent v. Hampden, 29 Maine, 70; Franklin Mining Co. v. Pratt, 101, Mass. 359.

The award not having been returned to court within the time limited in the submission cannot legally be accepted at a term subsequent thereto.

To avoid the effect of this and to authorize the acceptance of the report, reliance is placed upon the following agreement, which was indorsed upon the submission but was not. acknowledged.

‘ In case the court should adjourn before the referees should make up their report, when it is made up, it is to be entered on the docket of the term at which it is made returnable.

James Berry.

Jan. 26, 1871. Jacob Sands.

By Harry Orr, at their request.

By R. S. 1857, c. 108, § 3, ‘The parties may agree when the report shall be made and, in that respect, vary the form without being confined to one year.’

By § 9, ‘ The report shall be made to the supreme judicial court within the time limited in the submission unless varied by the parties. ... , .

It would seem from the memorandum of Jan. 26, 1871, that the court, to which the report was returnable, was then in session and might adjourn before the award should be completed. To avoid this difficulty, it was agreed, in case the court should adjourn before the award was ready, that it might be returned to the clerk, who was thus authorized to enter it on the docket of January, 1871, to which, by the submission, the return was to be made. But this was not done. As the report was not offered within the terms of this agreement, it is not necessary to determine whether the parties could legally give such authority to the clerk.

If this is not the true construction of the agreement referred to, still the same l’esult must follow. The agreement is not one to vary the return day of the award to January, 1872, or to any other time. The statute requires a definite time when the report should be made, or a limited time within which it should be returned. But here there is no definite time fixed, and no time limited within which a report was to be made. The report might as well have been made ten years after the agreement as one year.

.'Exceptions sustained.

Cutting, Walton, Dickerson, and Danforth, JJ., concurred.