85 Me. 340 | Me. | 1893
The appellants petitioned the court of insolvency in Androscoggin county to expunge the appellee’s proof’ of debt against the insolvent’s estate. To the petition, appellees filed their answer, and proofs were taken, whereupon the judge
The Supreme Judicial Court takes jurisdiction of appeals from the decrees of judges of insolvency, by force of B.. S., c. 70, § 12, that requires all appeals in insolvency to "be taken to the supreme judical court next to be held within and for the county where ¿he proceedings are pending,” giving exceptions in matters of law, that must be certified to the chief justice.
It is plain that the appeal was prematurely entered and should have been dismissed. Clark v. Railroad, 81 Maine, 477. But it is urged that appellees agreed in writing that the appeal might be entered at the April term. Be it so ; they saw fit to repudiate their agreement, and seasonably, the next day after their appeal was entered, moved to dismiss it. The jurisdiction of the supreme judicial court, in such matters, is purely appellate and only exists by force of statute. Consent of parties never gives a court jurisdiction. State v. Bonney, 34 Maine, 223 ; Powers v. Mitchell, 75 Maine, 372.
A valid appeal vacates a valid decree or judgment; and until affirmed in the appellate court there is neither. Knox v. Lermond, 3 Maine, 377 ; Winslow v. Commissioners, 31 Maine, 444; Atkins v. Wyman, 45 Maine, 399; Tarbox v. Fisher, 50 Maine, 236 ; Hunter v. Cole, 49 Maine, 556. Not so with insolvency appeals, by reason of the peculiar provisions .of R. S., c. 70, § 12. Nor with void appeals from valid judgments, for they give the court no jurisdiction of the cause. Cleveland v. Quilty, 128 Mass. 578 ; and cases cited. Nor with valid appeals from void judgments. White v. Riggs, 27 Maine, 114 ; Veazie Bank v. Young, 53 Maine, 555.
It may be said that the appellees should not be allowed to repudiate their agreement and thereby deprive the appellants of their appeal, and leave them bound by a decree that cannot now be appealed from, and especially as that decree was pro forma only, leaving a determination of the cause without any judicial consideration. Certainly not.
The decree does not purport to be a decision upon the merits of the question. It can be no bar to a new petition. Moreover, the statute requires the insolvent court, on objections in writing to the allowance of a claim that has been filed,- " to admit the claim to be proved,” or "disallow the same in whole or in part.” R. S., c. 70, § 25. This decree did neither. It simply dismissed the petition, without passing any judgment upon the claim, and without intending to do so. An appeal is given, not from a dismissal of a petition of this sort, but " from the decision of the judge, allowing or disallowing, in whole or in part, any debt, claim or demand against the debtor or his estate.” The filing of a claim, under oathj is prima facie only. When
Exceptions sustained. Appeal dismissed.