Wentworth v. Wyman
Supreme Judicial Court of Maine
On exceptions. The opinion states the point and material facts. cited: Cooley, Torts, 468; Gall v. Mitchell, 39 Maine, 465; Shaw v. Reed, 16* Mass. 450; Addison, Torts, 810; Bond v. Chapin, 8 Met. 31. Kerr v. Mount, 28 N. Y. 659. If a party to a suit has any knowledge or suspicion that the court before whom said suit is to be tried, is not qualified to try and determine the same, and proceeds to trial without raising the question, he thereby waives the question, and cannot…
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On exceptions. The opinion states the point and material facts. cited: Cooley, Torts, 468; Gall v. Mitchell, 39 Maine, 465; Shaw v. Reed, 16* Mass. 450; Addison, Torts, 810; Bond v. Chapin, 8 Met. 31. Kerr v. Mount, 28 N. Y. 659. If a party to a suit has any knowledge or suspicion that the court before whom said suit is to be tried, is not qualified to try and determine the same, and proceeds to trial without raising the question, he thereby waives the question, and cannot afterwards take advantage of it, at least he waived his right to recover any damages sustained by him in that suit.…
1Opinion of the CourtWalton, J.
The question is whether one, who is sued before a trial justice after his commission has expired, and who, on that account, is denied a trial, denied his costs, and denied an appeal, can maintain an action to recover his costs.
We think he can. It is now well settled, although formerly held otherwise, that when an action fails for want of jurisdiction, the defendant is entitled to costs ; and, if he cannot recover them otherwise, he can maintain an action for them. The rule, as stated in Elder v. Dwight Man. Co. 4 Gray, 201, is that, where a writ is served, returned, and entered by the…
2Cases cited1 opinion
- Mann v. HolbrookSupreme Court of Vermont · 1848