*2 McKUSICK, J., Before POMER- C. OY, ARCHIBALD, DELAHANTY and NICHOLS, JJ.
NICHOLS, Justice. 1978, Plaintiff, July
On Gertrude Martel, Androscoggin M. a resident of County, Court commenced that Defend- county an action ant, the of the Town of Old Inhabitants Beach, seeking damages per- for Orchard injuries sonal she sustained almost which year July when she earlier on parking tripped over metal base of surface of projected meter which above the alleged injuries a sidewalk. her were She Defendant negligence caused maintaining Town in its this sidewalk. Town, Upon the motion Defendant September on ordered this action dismissed for venue that order unless within the action the Plaintiff to transfer moved County. to the docket of that Court in York brings this From the Plaintiff that order (a) appeal, asserting alternatively her resi- properly laid dence, (b) her of venue if initial choice wrong, action should not be dis- coun- proper missed but to the transferred ty-
Upon ground her we sustain second appeal.
A is whether threshold judgment there has been from a final to Rule appeal may pursuant taken 73(a), appeal will Ordinarily, M.R.Civ.P. no judg is final appeal lie unless the from a within certain enumerated ment comes Share, Me., exceptions Boyle rule. to the be (1977). A the action disposes comes final when fu question for and leaves no further In re of the court. ture consideration Me., 300 A.2d Development, Spring Valley A., Fournier, Rocheleau & P. Ronald P. Lewiston,
Lebel (orally),
plaintiff.
held
a denial
It has been
that
Bernstein, Shur,
an order
Nelson,
of venue or
Sawyer
F.
&
Portland,
venue is
proper
Paul
to a
(orally),
transferring
Frinsko
an action
for defend-
Milgo Elec-
ant.
non-appealable,
Corp. v.
Codex
Corp.,
tronic
(1st
1977);
urges
F.2d
Cir.
The Plaintiff
the Maine Tort
American Fidelity Ins. Co. v. United States
claim;
applicable
Claims Act1 is
to her
Cal.,
District Court for No. District of
that,
any express
under
absent
that Act
(9th
1976). Here,
F.2d 1371
Cir.
con
general
provisions,
venue rules
trast,
the Superior
effect of
Court’s
*3
(Supp.1978)2
in
set forth
14 M.R.S.A.
501
§
that,
order was
day period
once the ten
had
permitted
apply, and that she
thus
to
expired,
Thus,
the action was terminated.
county
in the
where
commence the action
operated
that order
as a final
she resides.
although the dismissal did not under Rule
8113(2)
is in
14
§
She
error.
M.R.S.A.
41(b)(3), M.R.Civ.P.,
adjudica
constitute an
that where a statute
(Supp.1978)3 states
Mobil
merits. See
Tankers Co.
tion on the
provides
Act
outside the Maine Tort Claims
Co.,
v.
Mene Grande Oil
(3rd
With that threshold behind Lewiston, iarty City of review of the 98 Me. 57 A. we next the decision to the appropriate (1904) obstructing sidewalk); Court as (plank seq. 1. (Supp.1978). immunity, provisions 14 M.R.S.A. § 8101 et cial the of that statute any shall be the exclusive method for recov- ery any (Supp.1978) 2. 14 fact to which M.R.S.A. of funds in situation § 501 in reads full: applies. that statute transitory actions, except Personal and process foreign except of attachment and as (Supp.1978) in reads full: § 4.23 M.R.S.A. 3655 provided chapter, brought, in this shall be any bodily injury or suf- parties Whoever receives State, when the in live the in the through any property county damage de- any lives; fers in his plaintiff where or defendant railing repair plaintiff State, or sufficient in fect or want of any and when no in in lives the the causeway bridge county highway, way, any lives; or town where defendant in ei- or action, may any may brought same in a civil ther case recover for the such action be in county year the one from the date be commenced within where the cause of took action place. injury suffering damage, Improper receiving may by of such or be raised the by answer, by by county obliged defendant law to motion of the repair or town or and if it is same, brought established that the action the the of such in if commissioners wrong county, county municipal it shall be road com- dismissed and or the officers or person defendant allowed double town autho- costs. When missioners of such or plaintiff by any county and defendant live in different rized any or commissioner of such action, counties municipal at the commencement of or officer road commissioner except process foreign attachment, of and of such town for either to act as a substitute during pendency party its one moves into the of them 24 hours’ of the had actual notice county other, may, same exceeding repair, with the on mo- or but not defect $6,000 want of either, county tion of be transferred to the had in town. If the sufferer case of a where both way then if previous live the court thinks that notice of the condition of such thereby promoted; will injury, be be recover of time of the he cannot originally tried if previously commenced and entered has notified one a town unless he by assignee therein. Actions nonne- municipal con- of the defective of the officers action, gotiable brought way. Any chose in person when who sus- of dition such Court, damage Court or injury person in the District in his or or some tains thereafter, county shall, commenced in the or division noti- behalf fy within brought Court, when in the District in of such commissioners original might municipal creditor have maintained officers of such or of the otherwise, his action. writing, set- town ting letter or in specify- damages and forth his claim for 8113(2) (Supp.1978) 3. 14 M.R.S.A. § reads ing injuries his nature nature of full: such and location the defect which caused expressly injury. any person provides When other statute is lost If the life governmental, deficiency, sovereign through a waiver of or ad- offi- such his executors Hutchings Sullivan, permit- v. Inhabitants of The order Me. (1897) (depression 37 A. for the transfer side- ted the Plaintiff to move walk).5 period within County its docket in York providing gen- days. is no statute There In this case the Plaintiff’s exclusive actions. changes of venue in civil erally recovery method for was an action provide a mecha- do statutes Neither our pursuant Venue is M.R.S.A. purpose change for the nism for a of venue therefore, governed, provisions of 14 trial securing impartial an because (1964); that statute directs disqualifi- prejudice, or local because pertinent part: upon the justice, cation or bias of a actions damages towns for [A]ll con- aggrieved Our statutes party.6 by reason of highways defects in shall be tain no for a *4 brought county and tried in the in which for the party’s civil actions a upon the town is situated. to or otherwise convenience of witnesses justice. The Town of the of being Old meet ends Orchard Beach located in County, York we conclude that sum, made Legislature has In while the for this action venue improperly laid in Superior provisions venue in certain for Androscoggin County. Court, covered completely it has not
We next advert disposition to the case before us not made of the The area law.7 of this statutes, case after Superior the it re- being governed by Court had those correctly decided the for such appropriate provide for mains the court to may county presiding Superior
ministrators the recover of or A Justice of Court such keep repair, may, agreement par- town to upon obtaining liable the same in a the in of action, brought civil ties, any for proceeding the benefit of the or transfer civil action deceased, jury estate of the such sum as the in to the the Court from may damages, par- deem judi- reasonable if the deficiency the in in Court another ties liable had said notice of originated. the region in which the case cial any which caused the loss of life. In action any parties may action All to civil consent against damages a town for loss for of life proceeding being brought in or transferred permitted section, under this the claim for judicial region any county in other damages, costs, including of award proper or to in venue is than the one which employees a town and its shall be permitted provided that the is which transfer disposed provided limited and of as under presiding prior approval of the of the 18, 2552, Title section but not exceed region judicial is to be where case $300,000 arising all of claims out is obtained. or transferred single a occurrence. At the of trial such as an ex- that statute do not construe may, action court on motion of either under of the circumstances statement haustive party, premises order a view where the may a civil transfer which the repair alleged defect or want it is when county to its docket in one from its action materially understanding would in a aid clear county. in another docket of the case. greater (1964) which § 4 M.R.S.A. 155 7. Cf. (the 5. 23 § M.R.S.A. 3655 first enactment District of venue in the treats transfer detail 118, 1821, 17) which was P.L. ch. has under- § Court. gone significant changes several in recent prob- Legislature addressed has not The P.L.1977, 2, 3, years. by It was amended ch. § by governed where action which arises an lem P.L.1977, January 31, 1977, by effective 578, ch. (1964) purposes is 505 14 M.R.S.A. 7, 25, § by July § effective 1977 and P.L. venue. We are 1977, 591, 4, commenced §§ ch. 5. We do not reach the import portion of 14 M.R.S.A. question reluctant of which of these amended versions (Supp.1978), requiring with dismissal applicable 501 § the statute is in the instant case. imposed, § 505 question costs into 14 M.R.S.A. a double (1964) Neither do plaintiff’s recovery reach the whether we clearly required. may statutorily when such is not be limited repeat damages perform- Legislature 14 M.R.S.A. where not to arise out of chose costs, by purely proprietary ance town of and it func- a for double § 505 like special inappropriate tion. to extend seems by governed 505. § 14 M.R.S.A. class actions (Supp.1978), 14 enacted § M.R.S.A. 508 1975, P.L. reads in § ch. full: 998 may of venue as be needed to sive secure fact or the resolution of some complex just legal determination of the action. upon provisions often may turn.10 jurisdictions most rules have pro been
mulgated, Illustratively, in the before us the enacted, or statutes requiring the may Plaintiff’s action now barred transfer of a civil action rather than its statute of limitations because of her coun- dismissal where venue is shown to have good sel’s that her cause argument faith been improper.8 Heiman, See Goldlawr v. action governed by the Maine Tort 369 463, 466-67, U.S. 913, 82 S.Ct. 8 L.Ed.2d turn, and, Claims 14 Act M.R.S.A. 501 39, 42 (1962); Merrill, Lynch, Pierce, Fen (Supp.1978), applicable ven- apparently ner & Smith v. National Bank of Melbourne ue provision. Co., & 665, Trust 667 (Fla.l970); So.2d Salay Braun, 480, Furthermore, spirit v. Pa. this result is 368, 1, M.R.Civ.P., Rule which ordains that our (1967); parte Phillips, 80, Ex 275 Ala. rules should be procedure of civil construed 144, (1963); So.2d Tuft, Cannon v. just every secure the determination Utah 2d 285 P.2d (1955); 844-45 action, and of 4 provisions Wiggins Finch, 232 N.C. 61 S.E.2d have which would us eschew (1950); generally Annot., see 3 A.L.R. pleading dismissal for errors in “technical Fed. (1970); Note, 27 Okla.L.Rev. 745 *5 alone.” (1974). The Court erred in order Superior Although these decisions gener are ing first this cause without deter dismissed ally grounded statutory provisions mining required reason compelling that a court venue, rules relating to pattern, their that result. before us contains The record nevertheless, guide is a useful in filling the reason, no evidence of much less interstices of incomplete our own one, compelling dismiss the Plaintiff’s provisions. We conclude that action, in an action, rather it. than transfer this, such as governed by provi the venue sion of 14 where the In the of the case be circumstances Superior Court finds the venue to have fore requires us laid, been improperly it shall make an af Court to its order this action transferred firmative finding proper County. docket in York shall, if it be justice, interest of The entry is: transfer such case in which it Appeal sustained. could brought.9 have been Order of vacated. dismissal We reach this result in view patent proceedings con- Remanded for further injustice to a plaintiff in the dismissal of his sistent opinion with the herein. Superior Court action merely because he made erroneous, well-intentioned, but
guess regarding the existence
WERNICK, J.,
of some elu-
not sit.
did
system
506-07,
provided by
Donnell,
the federal
it is
I see no error the Superior Court. judge
The gave plaintiff an opportunity to
change venue, and she did not avail herself
of it. Plaintiff has offered no excuse for
her failure to act after she told to take
her action County to York within ten
or have her case dismissed. I do not under- why
stand that was an entirely not correct
way handling problem in view of the
fact that our rules and provide statutes no
express mechanism to effect transfer of Court’s disposition
matter had at least the virtue giving
plaintiff an incentive to remove her case
expeditiously after she found her action had
been in the wrong county. I see no
such incentive in adopted the rule by the
majority.
STATE of Maine
Brett CHRISTIANSON.
Supreme Judicial Court of Maine.
Aug. 21, 1979.