Farnsworth v. Whiting ( 1910 )

Cornish, J.

This case is before the Law Court upon plaintiff’s exceptions to the final decree entered in the above entitled cause under date of April 26, 1910, and involves the construction of Equity Rule No. 28.

The original suit in equity was brought to recover certain personal property in the possession of the defendants but alleged to belong to the plaintiff in her representative capacity, the property consisting of promissory notes, with bills of sale and insurance policies given as security therefor, certificates of stock, bonds and a dividend check. An issue of fact was framed for the jury as to whether the plaintiff’s intestate, before his death, had given to the defendants the personal property in question and the jury found that he had. Thereupon the sitting Justice signed a decree affirming the finding of the jury and decreeing that "all said property is now the property of said Whiting and Martin.” The plaintiff carried the case to the Law Court on appeal where the finding as to this particular property was sustained and the decree of the sitting Justice was affirmed with costs. Thereupon a decree was filed and signed in accordance with the decision of the Law Court and it is to this decree that the plaintiff excepts.

The ground of exception is that the decree, excepted to, contains "various provisions requiring the plaintiff to transfer and endorse certain securities and to pay over any sums of money she may have collected during litigation by way of interest, or dividends,” the plaintiff contending that the decree should contain simply the words of the former decree and should embrace no elements not contained therein. Such a construction of Revised Statutes, chapter 79, section 22, and of equity rule No. 28, is altogether too narrow. It is true, as decided in Whitney v. Johnston, 99 Maine, 220, that the decree must follow the mandate and that a single Justice cannot enlarge or limit or modify the scope of the mandate or hinder or delay its execution. But it is also true, as stated in the same opinion, that while he should enter a decree in accordance with the mandate, he may no doubt issue subsidiary process, if necessary, to enforce such decree. In other words, a single Justice should sign such a decree as will effectuate the decision of the court and give to the prevailing party such remedy as the court decides he is entitled to. In the case at bar the court has decided that the property in question belongs to the defendants. To simply enter a decree to that effect while the nominal title still rests in the plaintiff, would be but one step in securing to the defendants their rights. It would decide that the defendants were entitled to the property but could not have it unless another bill in equity were brought to compel the transfer. This would be a useless formality and a court of equity cannot be so impotent. The last decree simply carries into effect the first. It is a mere corollary. It does not attempt to go outside the scope of the mandate but to effectuate it.

It is the opinion of the court that these exceptions should be overruled with treble costs.

Exceptions overruled.