Buxton v. McGuire

347 A.2d 600 (1975)

Philip W. BUXTON and Richard A. Buxton v. Eleanor McGUIRE.

Supreme Judicial Court of Maine.

November 17, 1975.

*601 Hale & Hamlin by Barry K. Mills, Blue Hill, for plaintiffs.

Fellows, Kee & Nesbitt by Samuel Nesbitt, Jr., Bucksport, for defendant.

Before DUFRESNE, C. J., and WEATHERBEE, POMEROY, WERNICK, ARCHIBALD and DELAHANTY, JJ.

PER CURIAM.

Defendant Eleanor McGuire has appealed, pursuant to Rule 73(a) M.R.C.P., from a judgment of the Superior Court (Hancock County) which rejected defendant's claim of sole ownership in a particular tract of land and adjudicated that plaintiffs Philip W. Buxton, Jr. and Richard A. Buxton had a two-thirds interest therein as tenants in common with defendant.

We must dismiss this appeal because the judgment purportedly appealed from is not a final judgment.

Defendant filed a total of six pleadings designated as counterclaims, motions to amend counterclaims or motions to add counterclaims. The six pleadings asserted three claims, one of which concerned a right of way, the second a so-called spite fence and the third sought compensation from the plaintiffs for a fractional share of the assessments, betterments and taxes paid by the defendant on account of the property at issue.

The right of way claim was voluntarily withdrawn by the defendant, and the claim concerning the spite fence was disposed of by the decree of the Superior Court. No adjudication has been made, however, upon defendant's claim for compensation.

The report of the referee recommended that the claim for compensation be dismissed without prejudice but the record discloses neither a specific acceptance of the referee's report by the presiding Justice nor an incorporation of the recommendation of the referee in the judgment. The judgment entirely omits mention of defendant's demands for compensation for the share of the assessments, betterments and taxes allegedly paid by defendant.

Since this counterclaim still awaits disposition, and the presiding Justice has made no certificate as required by Rule 54(b) M.R.C.P. in a case involving multiple claims, the judgment before us remains interlocutory. The appeal must be dismissed.

The entry is:

Appeal dismissed.

All Justices concurring.