Moores v. Inhabitants of Springfield , 143 Me. 415 ( 1948 )

Per curiam.

On exceptions to acceptance of a referee’s report. This case having been referred under a Rule of Court, the referee filed a report “Judgment for the defendants.” The plaintiff filed written objections to the acceptance of the report. On motion by the defendant, the presiding justice accepted the report and the plaintiff filed exceptions which were allowed. The plaintiff complied with an order “completed bill of exceptions and evidence to be filed on or before January 1, 1948.” Although a transcript of the evidence is included in the printed case, the bill of exceptions fails to incorporate the evidence by appropriate, reference.

The court in considering the exceptions cannot travel outside of the bill itself. In this respect the court cannot consider the evidence unless made a part of the bill of exceptions. Jones v. Jones, 101 Me. 447, 451. Without the evidence it is impossible for this court to pass upon the issues intended to be raised by the bill of exceptions.

From the docket entries which are made a part of the bill of exceptions, “completed bill of exceptions and evidence to be filed on or before January 1, 1948,” and “Evidence filed as ordered” it is apparent that the failure to incorporate it in the bill of exceptions by reference was an inadvertent error.

“When errors in pleading or procedure render it impossible to pass upon the issues intended to be raised by a bill of exceptions, and the ends of justice require such action, this court has authority under R. S. Chap. 91, Sec. 14, to order a remand for the correction of such errors.” Powers v. Rosenbloom, 143 Me. 408; 59 A. (2nd) 844. This is such a case and it is remanded to any justice of the Superior Court for correction of the bill of exceptions by incorporating the evidence therein, in term time or vacation, and the re-entry of the case at the January term, 1949, of the Law Court.

Wendall Atherton, for plaintiff. E. Donald Finnegan, for defendant. Sitting: Sturgis, C. J., Thaxter, Murchie, Tompkins, Merrill, JJ.