Leviston v. Standard Historical Soc

• Decision Date: 20 July 1934
• Citation: 173 A. 810
• Parties: LEVISTON v. STANDARD HISTORICAL SOC.
• Court: Maine Supreme Court

173 A. 810

LEVISTON

v. STANDARD HISTORICAL SOC.

Supreme Judicial Court of Maine.

July 20, 1934.

Exceptions from Superior Court, Kennebec County.

Petition by Margaret Leviston to review an action in which judgment by default was entered against petitioner in favor of the Standard Historical Society. To the denial of the petition, petitioner reserved exceptions.

Exceptions overruled.

Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, THAXTER, and HUDSON, JJ.

Harvey D. Eaton, of Waterville, for petitioner.

Carl A. Blackingtop, of Waterville, for respondent.

STURGIS, Justice.

This is a petition for review of an action in which judgment was entered against the petitioner by default. In the trial court, the petition was denied on the ground that, although it was alleged and fairly sustained by the evidence that the petitioner had a defense to the action and intended to present it at the trial, the attorney she employed negligently failed to enter his appearance and defend the case. Exceptions to the denial of the petition were reserved.

When judgment is rendered on default against an absent defendant, he is entitled "of right" to a review. Rev. St. c. 96, § 5. If the defendant brings himself within this statute, a writ of review will be issued under Rev. St. c. 103, § 7, without petition. Jackson v. Gould, 72 Me. 335, 338. This is the review of right referred to as given by Rev. St. 1858, c. 82, § 4, and discussed in Jones v. Eaton, 51 Me. 386. And we have no doubt that the court intended to cite the same provision as re-enacted in Rev. St. 1871, c. 82, § 4, in its comments on review of right in Sherman v. Ward, 73 Me. 29. The reference in that case to Rev. St. c. 89, § 1, case 1st, as authority for a review of right is undoubtedly a clerical error.

The petitioner here, however, was not an absent defendant within the purview of the statute giving a review of right. So far as the record discloses, she resided and was present in the state at all times. She is a petitioner for review under Rev. St. c. 103, § 1, which permits any justice of the superior court to grant one review in civil actions when judgment has been rendered in any judicial tribunal in that county if petition therefor is presented within three years after the rendition of judgment, and in the special cases thereinafter enumerated. The petition presented here was, in the first instance considered by the presiding justice in the light of the provisions of special case numbered 7 of the statute, which reads: "VII. 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, if a petition therefor is presented to the court within six years after judgment."

There is no allegation or proof of fraud. The only question before the court was whether there had been such a failure of justice through accident, mistake, or misfortune, that a further hearing of the cause would be just and equitable. The burden of establishing these essential requisites of review was on the petitioner. Donnell v. Hodsdon, 102 Me. 420, 67 A. 143. The allowance or denial of the petition rested wholly in the discretion of the court. Tuttle v. Gates, 24 Me. 397; Jones v. Eaton, supra; Austin v. Dunham, 65 Me. 533; Berry v. Titus, 76 Me. 285. Its decision thereon can be revised upon exceptions only for erroneous rulings on matters of law. Inhabitants of Town of Thomaston v. Starrett, 128 Me. 328, 147 A. 427.

In construing this statute, it has been held that the words "accident, mistake, or misfortune," as used therein to describe the source of injustice which would make a further hearing just and equitable, "ordinarily import something outside of the petitioner's own control, or at least something which a reasonably prudent man would not be expected to guard against or provide for." It is the duty of litigants to be diligent in their cases in court. "If judgment goes against a litigant by reason of his neglect to appear, or by reason of the insufficiency of his evidence or argument, he has not thereby suffered an injustice, but rather the natural consequences of his own neglect." Pickering v. Cassidy, 93 Me. 139, 147, 44 A. 683, 685. A review will be denied "when it appears that the petitioner's predicament is due to his own fault and want of reasonable diligence." Farnsworth v....