89 Me. 320 | Me. | 1896
This action is before tbe law court on exceptions to tbe acceptaxxce of tbe award of a referee. It is an actioxx commenced by tbe Ixxbabitaxxts of tbe town of Buclcsport against Joseph L. Buck to recover a town tax assessed agaixxst bixn in 1888. Tbe actioxx was referx'ed to Mr. Justice Whitehouse with tbe right to except regarding matters of law. Mr. Justice White-house has made an award ixx favor of tbe town, therein stating that be found axx account filed by tbe defendant ixx set-off barred by the statute of limitations. He also states tbat, at tbe bearing before him, the plaixxtiffs offered ixx evidexxce ixx support of theixaction certain recox'ds of tbe town of Bucksport, which be ruled were legally sufficient. But bis award is in forxn absolute. It contains xxo conditions axxd subxxxits xxo questions either of law or fact to tbe determination or revision of tbe court. So far as appears, no objections to bis rulings were made at tbe time of tbe trial before him, and xxo exceptions were then taken or reserved. Bxxt when his award was presented for acceptaxxce
In the present case, the objections were in writing, and they were filed with the clerk; but they did not set forth specifically the grounds of the objections. It would be difficult to conceive of objections more unspecific. Everything stated in the report of the referee, and everything stated in the defendant’s objections, and everything stated in his bill of exceptions, may be true, and yet the defendant have no grounds of complaint. There is nothing in the case to indicate that the finding of the referee, that the account filed in set-off was barred by the statute of limitations, was not correct; Apparently it was correct.
Our attention has been called to certain supposed defects in the records of the town of Bucksport, and particularly to a defective return on the warrant for the annual town meeting for the year 1888. The return on the warrant is undoubtedly defective, as the authorities cited by the learned counsel for the defendant will show. But there is neither averment nor proof before us that these defects were called to the attention of the referee, or that any objections whatever were made to the sufficiency of the town records, at the time of the trial before him. This we regard as a very serious omission; for, if no such objections were then made, they could not be successfully made afterwards. It is a well-settled rule of law that objections to evidence must be made when the evidence is offered, or they must be regarded as waived.
In Patten v. Hunnewell, 8 Maine, 19, the action had been referred by a rule of court; and, on the coming in of the award, which was in favor of the plaintiff, the defendant objected to its
So, in Kimball v. Irish, 26 Maine, 444, where, in an action on a poor debtor’s bond, the records of two justices of the peace and of the quorum, introduced in defense to show that the debtor had disclosed and been discharged, were defective, and the court ruled that the records were sufficient to show a performance of one of the conditions in the bond, and the plaintiff excepted, the full court held that all objections to the records not specifically made during the trial must be regarded as waived, and that a bill of exceptions to the reception of illegal evidence, or to a ruling’ that it is sufficient, must show that the objections were so made, and were specific, or the exceptions will not be sustained. “Regularly,” said Chief Justice Whitman, “ exceptions, in order to be available, should be specifically taken during the trial, and, if not so taken, they should be considered as waived.” And he stated the reason of the rule as follows : “ This certificate was introduced as evidence that the oath had been taken as required, and went to the jury without objection, as affording evidence that it had been so taken. If it had been objected to on its being introduced, the defect might have been cured by an amendment, and perhaps by parol proof. The objection, therefore, if valid when seasonably made, comes too late, and can not be allowed to prevail without manifest injustice.” The defect in the certificate
In White v. Chadbourne, 41 Maine, 149, it was urged that when the evidence is documentary, a bill of exceptions stating that the evidence was objected to ought to be held sufficient, because the court can, upon examination of the evidence, determine whether or not the objection is well taken; but the court held that it is no part of the duty of a judge at nisi prius to examine documentary evidence in search of matter that may render it incompetent; that all objections to evidence, to be available, must be specific; and that a bill of exceptions which fails to show that the objections were specific, can not be sustained. Objections, when not made at the trial, come too late. Longfellow v. Longfellow, 54 Maine, 240. And the objections must be specific. Bonney v. Morrill, 57 Maine, 368.
The reasons are obvious and substantial. Parties are entitled to an opportunity, to avoid exceptions to the competency or the sufficiency of their evidence, if they can. This they can do by withdrawing the evidence objected to; or, if the evidence is documentary, and the objections are to mere matters of form, by withholding it till the defects can be removed by amendments. These are rights of which parties can not be rightfully deprived. They have a right to insist that all objections to their evidence shall be made when the evidence is offered, and be specific, so that they can intelligently determine whether they will take the risk of an exception, or avoid it in one of the ways mentioned; or, if not so made, that the objections shall be regarded as waived.
We are not holding that the records of the town of Bucksport were all in proper form. But it may not be out of place to say that all of the defects to which our attention has been called are in matters of form only, and that such defects are now amendable ; and that, if a new trial should be -granted, it is not only possible, but probable, that every one of them would be cured by legitimate and truthful amendments before the records would be again offered in evidence. And then, of what advantage would the new trial be to the defendant? See R. S., c. 3, § 10.
Exceptions overruled.
