Agway, Inc. v. Luce , 1974 Me. LEXIS 261 ( 1974 )

326 A.2d 832 (1974)

AGWAY, INC.
v.
Eisie A. LUCE, Administratrix of the Estate of Roland H. Luce, and Kendall R. Luce.

Supreme Judicial Court of Maine.

October 23, 1974.

Perkins & Townsend by Clinton B. Townsend, Skowhegan, for plaintiff.

Eames & Eames by Donald E. Eames, Skowhegan, Morton A. Brody, Waterville, for defendants.

Before DUFRESNE, C.J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

DELAHANTY, Justice.

In plaintiff's action to enforce certain debt obligations, the Superior Court ruled that plaintiff's motions for summary judgment were "granted in part," but that "entry of final judgment must wait the agreement of the parties or hearing on the reasonableness of attorney's fees." Defendant seeks to appeal the Superior Court's ruling.

In its present posture and on the record before us, the appeal must be dismissed, and the case remanded to the Superior Court for final adjudication of pending and unresolved issues properly before that court. Deciding the attempted appeal presently before us would not dispose of the issue pending in the trial court. Substantial interests of the parties are as yet undetermined; our intervention on an appeal of one issue would lead only to fragmentary and dissevered adjudication. See Wormelle v. George, Me., 325 A.2d 4, 6 (1974).

The characterization of the appeal as from a partial summary judgment does not lend the appeal greater urgency or finality. The essential consideration is that a partial summary judgment is not a judgment on the whole case but is customarily interlocutory in nature and not appealable. See Albatross Shipping Corporation v. Stewart, 326 F.2d 208, 210-211 (5th Cir. 1964). Had the trial court wished to enter a judgment with final effect as to one of the claims or one of the parties, there are procedures for doing so under our Rules. Me.R.Civ.P. 54(b). We intimate no opinion whether such a procedure is appropriate or desirable in the instant case.^[1]

The entry must be:

Appeal dismissed.

Remanded to Superior Court for further proceedings.

All Justices concurring.

NOTES

[1] On remand, we would direct the Superior Court's attention to anomalies in plaintiff's count two as it appears in the record. Plaintiff's motion for summary judgment, as reproduced at R-59, does not incorporate relief bearing on plaintiff's count two. A docket entry states that a motion for summary judgment bearing on count two was filed by plaintiff on March 7, 1974. (R-5). This motion does not appear in the record. The ruling of the Superior Court may thus properly be clarified on remand as to the interrelation of plaintiff's demands for relief, to the extent that said interrelation affects the final judgment.