In re Tolman

• Decision Date: 15 September 1906
• Citation: 64 A. 952,101 Me. 559
• Parties: In re TOLMAN, Sheriff.
• Court: Maine Supreme Court

64 A. 952

101 Me. 559

In re TOLMAN, Sheriff.

Supreme Judicial Court of Maine.

Sept. 15, 1906.

Exceptions from Supreme Judicial Court, Knox County.

Petition by A. J. Tolman, sheriff, to amend his return on an execution sale. From an order denying the same, plaintiff excepts. Exceptions sustained.

Petition by A. J. Tolman, sheriff of Knox county, asking to amend his return of the sale of an equity of redemption on the execution so as to make it conform to the facts.

At the hearing in the court of the first instance, and which hearing was without notice to those adversely interested, the presiding justice ruled, "as a matter of law, that the petition could not be maintained, and that the officer could not amend his return in accordance with the facts." To this ruling, the plaintiff excepted. The bill of exceptions further states that this ruling was made without regard to the question of notice.

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

R. I. Thompson and Joseph E. Moore, for plaintiff. Arthur S. Littlefield and Alan S. Bird, amici curiae.

POWERS, J. Petition by the sheriff to amend his return upon an execution so as to make it conmorm to the fact At the hearing, which was without notice to those adversely interested, the presiding justice ruled, "as matter of law, that the petition could not be maintained, and that the officer could not amend his return in accordance with the facts." To this ruling, the petitioner excepted, and the exceptions further state that the ruling was made without regard to the question of notice.

The execution had been returned and had become a part of the records of the court in effect the ruling denied the power of the court to allow its records to be amended in accordance with the fact. Such a doctrine cannot be supported upon either reason or authority. The power of a court to permit its records to be amended so that they shall conform to the fact and speak, not falsehood, but the truth, has been so universally asserted, and exercised in such innumerable instances, that it must now be regarded as settled law requiring no citation of authorities in its support. Whether the proposed amendment shall be allowed upon proof of the necessary facts, saving the rights of all persons theretofore acquired in good faith, is within the sound judicial discretion of the justice presiding at the hearing, but we are aware of no instance in which his want of power to allow such amendments,...