Fidelity & Casualty Co. v. Bodwell Granite Co.
66 A. 314
Me.
1906
Check Treatment
Emery, J.

In this case after issue was joined but before any trial of that issue the plaintiff filed a motion under the statute, 11. S., cli. 84, sec. 28, that the defendant be required to produce for inspection certain books and papers alleged to be in its possession and material to the issue. The presiding Justice made no decision nor order on this motion but by agreement of the parties reported it for the Law Court “ to make such order as the rights of the parties require.” There was no stipulation for any disposition of the case as the result of the order of the Law Court either way.

We think the parties, in causing this motion to be reported in this way by itself before verdict, have misapprehended the function and jurisdiction of the Law Court. The motion is merely interlocutory W. U Tel Co. v. Locke, 107 Ind. 9, (7 N. E. 579). It may be granted or denied without concluding either party upon any question of law or fact involved in the issue to be tried, and no stipulation was made that either party should be so concluded. Cases cannot be thus sent to the Law Court piece meal, one question at a time, the case to be returned again to the Law Court when and as often as another question may arise. Monaghan v. Longfellow, 82 Maine, 419. As said by the court in State v. Brown, 75 Maine, 456. “ If the case be sent to us once in this way, there is no reason why it could not come up in the same way over and over again upon *152motions possible to be made.” That the parties agree to such a course does not make, it lawful. It would transform the Law Court into an advisory board for the direction of the business of the court at nisi prius, a function the Law Court cannot assume. Noble v. Boston, 111 Mass. 485.

All interlocutory motions and other interlocutory matters should be disposed of at nisi prius, saving to the parties their rights of exception or appeal, if any. They should not be sent to the Law Court even upon report at the request of the parties, except at such stage of the case, or upon such stipulation, that a decision of the question may, in one alternative at least, dispose of the case itself. The legislature in constituting the Law Court and defining its jurisdiction (B. S., ch. 79, sec. 46,) did not intend it to be used as a substitute for presiding Justices nor to relieve Judges in the trial courts from the duty of deciding, as they arise, mere interlocutory questions incident to the progress of the trial or the case.

As well might motions for the appointment of auditors or surveyors, or questions of the admissibility of evidence, or requests for instructions, &c., be sent, to the Law Court for original decision. It is evident, that even by agreement of parties, a trial should not be interrupted or postponed in order to obtain the opinion of the Law Court upon such questions, at least unless the parties stipulate that the opinion in some alternative shall practically end the case. Noble v. Boston, 111 Mass. 485. The result of the trial may entirely eliminate the interlocutory matter from the case. Thus, in this case, if the motion be granted, the defendant may yet obtain a verdict and judgment, and viceversa. In such event the ruling upon the motion will become immaterial and a decision upon it useless. The Law Court cannot be required and indeed has no jurisdiction to decide, prematurely, interlocutory questions which the subsequent proceedings in the case may show to be wholly immaterial, unless, as already stated, the parties stipulate that the decision may, in one alternative at least, supersede further proceedings.

Report discharged.

Case dismissed from the law docket.