The opinion
Murray, A. R. J.,
Dissenting
The majority opinion in this case, which we shall hereafter refer to as the opinion, has decided it upon the merits. With its contention that it has jurisdiction to do so we cannot concur.
Our contention is that the case is not in this court legally, therefore, not here at all, and all that this court can do is dismiss it from the docket for want of jurisdiction.
Following is the record of the lower court:
1955 Nov. T 2 Defendant’s plea filed. State’s demurrer to plea filed. Respondent’s joinder filed. Demurrer to plea sustained. Respondent to plead over.
1955 Nov. T 8 — Extended bill of exceptions to be filed on or before Jan. 10/56.
1956 Jan. T 6 — Extended bill of exceptions filed and allowed.
Jan. 9
8 — Law Court notified. Law
The record does not show that evidence was filed before case was marked law. Rule 19 A. Nor does it show that respondent pleaded over. It does not show that the case was closed. It does not show a finding of guilty. It does not show judgment, that is the sentence.
*173 R. S. 1954, Chap. 106, Sec. 19. “When a dilatory plea is overruled and exceptions taken, the Court shall proceed and close the trial and the action shall then be continued and marked Law.”
The opinion appears to admit that this statute must be complied with by saying:
“The respondent confronted with the adverse ruling did not exercise his right to plead over. He chose instead to bring forward his exceptions without trial, and to submit his cause for final determination on the strength of his special plea. He cites as authority “* * * Having entered his action in this court, which he could not rightfully do unless it was in a condition to be finally disposed of if his exceptions should be overruled, his right, if any, to answer further, must be regarded as waived.” State v. Inness, 53 Me. 536, 541 .
The record shows what Stowell v. Hooper, 121 Me. 152 , 156 calls a pardonable error by the clerk, in that the clerk marked the case Law, almost the moment the exceptions were filed, before the evidence was filed and before the case was closed by the court. This case also holds that the entering of the case in the Law Court was not a waiver by the respondent, this was the act of the clerk, and that the respondent finding his case in the Law Court and following it there, can hardly be regarded as a waiver. This has been affirmed in Hutchings v. Libby, 149 Me. 371, 377 ; Augusta Trust Company v. Glidden, 133 Me. 241, 242 ; Kloput v. Scuik, 131 Me. 499 .
In Kloput v. Scuik, supra, defendant did not plead over nor was case closed. Augusta Trust Co. v. Glidden, supra, after holding that neither filing of exceptions nor erroneous certification of exceptions was a waiver, also held record did not show a refusal to plead.
*174 In case at bar, the record does not show a refusal to plead over. Respondent could plead over at any time before trial unless directed by the court to plead over earlier. Stowell v. Hooper, supra, 154 . The judgment of the court to plead over could hardly be called an order to plead at a definite time, because to plead over was the only judgment which the court could give.
We also add that if the plaintiff could waive his right to plead over, and if he did so, this could not be a waiver of the express command of the statute that the presiding justice close the case before it could be marked Law or sent to the Law Court. Not even the justice could waive that command. This case is now in the Law Court without an adjudication in the lower court of conviction. Cushing v. Friendship, 89 Me. 529 , and without a judgment. Sentence is the judgment in a criminal case. Jenness v. State of Maine, 144 Me. 45 ; State v. Stickney, 108 Me. 136 .
“This court has said many times, the Supreme Judicial Court sitting as a Law Court is of limited jurisdiction. As such, it is a statutory court and can hear and determine only those matters authorized by statute and brought to it through the statutory course of procedure.” Sears Roebuck & Co. v. Portland et al., 144 Me. 250, 254 .
“There is nothing in our statutes which implies or contemplates that any case can go forward to the Law Court on an appeal or on exceptions until after final judgment below. And the authorities are practically unanimous in holding that this cannot be done in the absence of a statute authorizing it and that the entry of final judgment is a jurisdictional fact which the parties cannot waive * * * The existence on the record of a final * * * judgment * * * is jurisdictional, and in the absence thereof an appeal cannot be maintained even by consent or wáiver of the parties. Although no objection may be made at the hearing and no motion may be made to dismiss, the court will on its own *175 motion dismiss the opinion.” Andreau et al. v. Dostie, 142 Me. 271, 273, 274 .
Not only is there no statute in this State allowing a case to go forward before final judgment, but there are two statutes forbidding it, R. S. 1954, Chap. 106, Sec. 19, and R. S. 1954, Chap. 148, Sec. 29. The latter “Sentence shall be imposed upon conviction * * * although exceptions are alleged.”
If the opinion prevails, it is on the reasoning that there has been a final judgment in the lower court and therefore this court has jurisdiction. If this is so, the lower court has no jurisdiction in the matter not even to order a mittimus. When the mandate comes from the Law Court, the clerk of the lower court on its receipt, acting ministerially, issues a mittimus, which in this case is nonsense, because there would be no sentence in the mittimus, the court has lost its jurisdiction and the respondent would be free. On the other hand, according to the dissenting opinion, the case would be dismissed from this docket because of having been prematurely brought here, it would then go back to the lower court where the court could close the case. State v. Cole, 123 Me. 340 .
“Cases should not therefore be entered in the Law Court on exceptions until they are in a condition to be finally disposed of if the exceptions are overruled.” Andreau et al. v. Wellman, 142 Me. 271, 274 . If this case is properly in the Law Court then it is finally disposed of by the mandate of the opinion “exceptions overruled.” Although there is no record of a conviction or a sentence which is the judgment. We think the mandate should be dismissed from this docket having been brought here prematurely.