138 Me. 113 | Me. | 1941
The declaration in this case, though stated to be “in a plea of the case,” was in fact trespass quare clausum. Cf. Place v. Brann, 77 Me., 342. The plaintiff claimed by her pleading that she had been for over a period of twenty years
When there is a ruling by the court at nisi prim, either sustaining or overruling a demurrer, and exceptions are taken and allowed, the case should then be marked “Law” on the docket and stand continued with no further action taken at nisi prius until a decision is handed down by the Law Court on the issues raised by the demurrer, when, subject to the provisions of the
The defendant objects to the amendment because he says the plaintiff could not properly change her action from trespass to case. There seems to be ample authority for such contention. Sawyer v. Goodwin, 34 Me., 419; Lawry v. Lawry, 88 Me., 482, 34 A., 273. But the plaintiff has not by her amendment so changed her cause of action. Confused though the pleadings are, the declaration still seems to be one of trespass quare clausum. What the plaintiff has done has been to change the substance of her claim to fit her cause of action. This she clearly had no right to do. The plaintiff could not sue for one thing and recover for another, and an amendment which would permit her to do so is improper. Robinson v. Miller, 37 Me., 312; Nickerson v. Bradbury, 88 Me., 593, 34 A., 521. See also Wyman v. Kilgore, 47 Me., 184; Gilman v. Cate, 56 N. H., 160, for amendment held allowable. An easement is an incorporeal right and something entirely different from the ownership of the fee. The amendment was inconsistent with the declaration and in effect set forth a new and distinct cause of action.
As the defendant’s exception must be sustained, there is perhaps no object in discussing the motion. But we might suggest that unless the jury understood the issue raised by the pleadings a great deal better than does this court, it is difficult to see how they could have arrived at an intelligible decision.
Exception sustained.