Davis v. Cass

• Decision Date: 28 May 1928
• Citation: 142 A. 377
• Parties: DAVIS v. CASS et al. NEWCOMB v. SAME.
• Court: Maine Supreme Court

142 A. 377

DAVIS

v. CASS et al.

NEWCOMB

v. SAME.

Supreme Judicial Court of Maine.

May 28, 1928.

Case Certified from Superior Court, Cumberland County, at Law.

Actions by Maud I. Davis and by Harry S. Newcomb against Martin V. Cass and others. Cases certified to the Supreme Judicial Court under Rev. St. c. 82, § 47, and argued together. Judgment for the defendants in both actions.

Argued before WILSON, C. J., and PHILBROOK, DUNN, DEASY, STURGIS, and PATTANGALL, JJ.

Jacob H. Berman, of Portland, Benjamin L. Berman, of Lewiston, Edward J. Berman, of Portland, and David V. Berman, of Lewiston, for plaintiffs.

Harry C. Wilbur, of Portland, for defendants.

WILSON, C. J. These cases were certified to this court from the superior court for the county of Cumberland under section 47, c. 82, R. S., and have been argued together. The issues involved are sufficiently similar so that they may be disposed of by one opinion.

Davis Case.

On July 12, 1922, Maud I. Davis sued out her writ of attachment against Martin V. Cass et al., returnable at the September term of said superior court, on which writ an attachment of real estate of the defendants was made. At the return term, an appearance was entered for the defendants and pleadings of the general issue filed. On September 24, 1923, a statute bond for the release of the attachment of real estate was furnished the plaintiff by the defendants with the Fidelity & Deposit Company of Maryland, one of the defendants in the case now at bar, as surety which bond was approved by the plaintiff's attorney and the attachment released.

Nothing having been done toward the prosecution of this action for a period of more than a year, under a rule of the superior court, according to the report of the case, the action, at the December term, 1923, was marked "dismissed" by the clerk, the docket entry being the usual one of "dismissed."

At the February term, 1925, by agreement of counsel for the plaintiff and the defendants, but without notice to the surety on the bond, the entry of "dismissed" was stricken off and the case restored to the docket and referred by "agreement of counsel" to a referee. No hearing was had before the referee, but by agreement of counsel the referee filed a report that judgment should be entered for the plaintiff for a sum agreed upon, which was less than the amount claimed in the writ. Judgment was entered at the March term, 1925, and execution issued and returned unsatisfied. Whereupon this action was brought on the bond given for the release of the attachment. The principals in the bond make no defense in the action now at bar; but the surety contends that, the case having been finally disposed of at the December term, 1923, by dismissal, under a rule of the superior court, it must be considered as having gone to judgment at that term so far as the original action was concerned and the power over it in the court below exhausted, and the surety was thereby relieved of liability on the bond.

This contention is sustained. It is true a court has power over its records to strike off entries made through error or mistake, even if made at a previous term, so long as the record of the case remains incomplete; or at the same term, by consent of the parties, an entry though duly made and finally disposing of the case; or under some circumstances the court may on motion of one party strike off an entry of judgment, if made by mistake, though made at a previous term. Lothrop v. Page, 26 Me. 119; Stetson v. Corinna, 44 Me. 29; West v. Jordan, 62 Me. 484; Priest v. Axon, 93 Me. 34, 44 A. 124; Myers v. Levenseller, 117 Me. 80, 102 A. 776; Hersey v. Weeman, 120 Me. 262,113 A. 394; Sawyer v. Bank, 126 Me. 314, 138 A. 470.

When, however, a valid and final judgment disposing of the pending action has been entered on the record, and the parties are out of court, the judicial power of the court ceases, and it does not lie in the discretion or power of the court at a subsequent term to bring the action forward. Judicial power has been exhausted. Myers v. Levenseller, supra; Shepherd v. Rand, 48 Me. 244, 77 Am. Dec. 225; Priest v. Akon, supra.

In the original action against the principals in the bond, the action was dismissed, according to the report, under a rule of court. The rule under which this action was taken is not made a part of the report. This court cannot take judicial notice of the rules of another court, but the docket entries in the case which are made a part of the report, and which of necessity are an abbreviated history of the proceedings, expressed in terms having a well-established meaning, of themselves import verity (Gardner v. Butler, 193 Mass. 96, 100, 78 N. E. 885), and regularity of procedure, and though the report contains a further statement that the dismissal was by the clerk, it also states it was done under a rule of court.

The only presumption from this is that the dismissal was done with the sanction of the presiding justice and by his authority (Leeds v. County Com'rs, 75 Me. 533, 535), and that the result was a final...