Hayford v. Everett

• Decision Date: 30 November 1878
• Citation: 68 Me. 505
• Parties: WILLIAM B. HAYFORD et al. v. CHARLES A. EVERETT.
• Court: Maine Supreme Court

68 Me. 505

WILLIAM B. HAYFORD et al. v. CHARLES A. EVERETT.

Supreme Judicial Court of Maine.

November 30, 1878

ON REPORT.

WRIT OF ENTRY, for about 13,300 acres of wild land in Kingsbury, in the county of Piscataquis, for which the defendant paid $598.32, on an execution sale. The plaintiffs put in evidence tending to show that they were in possession under deeds making a prima facie chain of title for a full and valuable consideration. The identity of the land was not questioned.

The defendant put in copy of record of a judgment recovered at the October term, S. J. C. Penobscot county, 1873, in favor of the county of Piscataquis, against the inhabitants of Kingsbury.

Also execution issued on the judgment, dated April 10, 1875, for the sum of $495.48 damage, and $16.08 costs of suit, with the following direction to the officer: " We command you therefore, that of the goods, chattels or lands of said debtor within your precinct you cause to be paid and satisfied unto said creditor, at the value thereof in money the aforesaid sums, being $511.56 in the whole, and legal interest on the debt and costs since the rendition of judgment, together with forty-five cents more for this and two former writs, and thereof also to satisfy yourself for your own fees."

Also the officer's return of seizure and sale to the defendant of the lands embraced in the suit for the sum of $598.32.

The defendant submitted the following motion to amend the execution, the full court to pass upon it with the same effect as at nisi prius: " Defendant moves this court for leave to amend the execution issued from the clerk's office, S. J. C. Penobscot county, on which the officer seized and sold the land in dispute, and the former executions on the same judgment.

That J. H. Burgess, the present clerk of said courts, add to and insert in said executions in the proper places, ‘ that of the goods and chattels of said inhabitants within your precinct, and of the real estate situated in said town of Kingsbury.’

That E. C. Brett, the former clerk who issued the executions, be permitted to make the amendments aforesaid."

There was evidence that the defendant was, at the time of the seizure and sale upon execution, county attorney for the county of Piscataquis, the creditor in the judgment execution, and had the control of the proceedings by the officer in fixing the time and the place of sale, which was at the county attorney's office; that, though the statute notice thereof was given, the plaintiffs had no notice in fact of any proceedings hostile to their ownership until the year had passed within which they had by law a right to redeem from the sheriff's sale.

F. A. Wilson & C. F. Woodard, for the plaintiffs, thought the execution was not amendable, and contended that, if it were, the power of the court to amend was discretionary, and that the amendment ought not to be granted in such a case as this.

C. A. Everett, pro se, contended that the court had the power to amend, referred to the adage of " glass houses," and said that the title under which the plaintiffs claimed was a tax title for which their grantor paid $6.80, and was void for informality.

Wilson, for plaintiffs, replied that his clients had a warranty deed, for which they paid full consideration, and under which they were in possession.

PETERS, J.

The county of Piscataquis recovered a judgment against the town of Kingsbury. The statute requires that the execution on such a judgment, shall be issued against the goods and chattels of the inhabitants of the town, and against the real estate situated therein, whether owned by such town or not. This requirement was neglected, and the execution issued runs only against the property of the inhabitants of the town. Upon this execution the officer sold real estate in the town belonging to the plaintiffs, who are non-residents. The plaintiffs seek in a real action to recover the land from the execution purchaser. Several points are discussed, upon a motion of the defendant that the execution be amended by the proper officer.

Is an amendment necessary, to cure the irregularity and make the defendant's title good? It must be. As the proceedings now stand, the sale was unauthorized. An officer could not sell property without any execution in his hands. No more can he sell property against which an execution in his hands does not run. As to such property he has no execution. The statutory requirement would be nugatory, if to obey it or disobey it amounted to the same thing. Pillsbury v. Smyth, 25 Me. 427. Thompson v. Smiley, 50 Me. 67. Chase v. Merrimack Bank, 19 Pick. 564. Kent v. Roberts, 2 Story 59. See other cases infra. This case does not come within the class of amendments allowed by the statutes of jeofails, which provided for the correction of many trifling errors that, under the liberalizing influence of those statutes, cannot now be regarded as errors, but comes under the general power of the court, conferred by the common law and our present statutes. Undoubtedly, in many cases the court could and would, instead of allowing a defect to be fatal to a court proceeding, remit parties to the right of having the records amended, or, even without motion, order the amendment to be made, as was done in the case of Lewis v. Ross, 37 Me. 230. But this is not a case of the kind, for reasons to be stated hereafter.

Has the court the power to order the amendment asked for? The error was the fault of the attorney or the clerk. It is clearly amendable by order of court. The precedents are numerous that show this. Hall v. Williams, 10 Me. 278. Rollins v. Rich, 27 Me. 557. Morrell v. Cook, 31 Me. 120. Lewis v. Ross, supra. Keen v. Briggs, 46 Me. 467.

While the court may allow the amendment, it is not compelled to allow it. It is a matter within its discretion. Inhabitants of Limerick, petitioners for certiorari, 18 Me. 183. Rowell v. Small, 30 Me. 30. Herrick v. Osborne, 39 Me. 231. Balch v. Shaw, 7 Cush. 282, 284. Bean v. Ayers, 67 Me. 482. So much is this so, that, where a single justice acts upon a motion to amend, his action is not reviewable by this court. His own discretion must govern. The reason for it is well stated in Clapp v. Balch, 3 Me. 216, 219. An exception, however, lies to this principle, where a justice rules as matter of law, instead of as matter of expediency, or where he sends the record to the full court for its opinion, or where he allows an amendment to be made not by law allowable. Of course the discretion is a judicial one, and not the mere arbitrary will and pleasure of the judge who exercises it.

What is the rule to guide the court in exercising this discretionary power? From the very nature of things the test prescribed must be of a general and somewhat indefinite character. It is quite universally declared in the cases that an amendment is to be allowed or disallowed according as it is or is not " " in the furtherance of justice." There can be no other rule. Freeman on Judgments, § 74. Bouvier's Law Dic. Amendment.

In Rex v. Mayor, etc., of Grampond, 7 Term R. 695, 696 Lord Kenyon says: " I wish that that could be attained that Lord Hardwicke in the case before him lamented,. . could not be done, namely, ‘ that those amendments were reducible to some certain rules; ’ but there being no such rule, each particular case must be left to the sound discretion of the court. And the best principle seems to be that on which Lord Hardwicke relied in the same case, that an amendment shall or shall not be permitted to be made, as will best tend to the furtherance of justice." In that case it was a binding custom that the mayor should be a resident of the city, and the jury found...