Donnell v. Hodsdon

• Decision Date: 19 February 1907
• Citation: 67 A. 143,102 Me. 420
• Parties: DONNELL v. HODSDON.
• Court: Maine Supreme Court

67 A. 143

102 Me. 420

DONNELL

v. HODSDON.

Supreme Judicial Court of Maine.

Feb. 19, 1907.

Exceptions from Supreme Judicial Court, Androscoggin County.

Petition of Emma M. Donnell against E. Y. Hodsdon for a writ of review. Findings for petitioner, and defendant excepts. Exceptions sustained.

The bill of exceptions states the case as follows:

"This is a petition for review, in which the petitioner prays to have a review of a certain civil action commenced against her in the municipal court for the city of Auburn, in said county, by E. Y. Hodsdon, and entered at the May term, 1906, in said court, in which action the petitioner was defaulted on the 28th day of May, A. D. 1906. The presiding justice, after hearing the evidence, found as a matter of fact that the writ in the original action was properly served, that the petitioner herein procured the services of an attorney, and that such attorney properly entered his appearance in court, that the action was properly assigned for trial, and the attorney for the petitioner had actual notice of the date set for such trial. The presiding justice also found as a matter of fact that a default in said case was entered after notice to said attorney and with his knowledge, and that the failure to defend occurred through the negligence and fault of the attorney for the petitioner, and ruled that failure of the attorney for said petitioner to do his duty was not negligence on the part of the petitioner, but was such accident, mistake or misfortune on her part as would entitle her to a review." To all these rulings the defendant excepted.

Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, POWERS, and SPEAR, JJ.

Arthur L. Bennett, for plaintiff. S. Merritt Farnum, Jr., for defendant.

EMERY, C. J. A petition for a review of a civil action is a statutory remedy, to be granted only "In the special cases" named in the statute. Rev. St. 1903, c. 91. § 1. The only "special case" invoked in this petition is that stated in clause No. 7 of the statute, which clause provides that "a review may be granted in any case where it appears that through fraud, accident, mistake or misfortune justice has not been done and that a further hearing would be just and equitable." At the hearing upon this petition the presiding justice found as a fact that the petitioner's attorney, who had appeared for her in the action sought to be reviewed, failed through negligence to notify her of the day set for the trial of the action, and...