Myers v. Thompson

• Citation: 117 Me. 80,102 A. 776
• Parties: MYERS et al. v. THOMPSON et al.
• Decision Date: 29 January 1918
• Court: Maine Supreme Court

102 A. 776

117 Me. 80

MYERS et al.

v. THOMPSON et al.

Supreme Judicial Court of Maine.

Jan. 29, 1918.

Exceptions from Supreme Judicial Court, Penobscot County, at Law.

Action by Arthur R. Levenseller against Harry W. Thompson and others, resulting in settlement, wherein Joseph Myers arid another petitioned that the action be restored to the docket, which petition was denied, and petitioners except. Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, BIRD, and PHILBROOK, JJ.

L. B. Waldron, of Dexter, for petitioners.

Hudson & Hudson, of Guilford, for defendants.

CORNISH, C. J. On February 28, 1911, one Joseph W. Myers, of Boston, Mass., brought suit against Lewis M. Thompson, of Corinna, in this state, returnable at the April term, 1911, of the Supreme Judicial Court for Penobscot county. The deputy sheriff, Arthur R, Levenseller, in whose hands the writ was placed, attached a certain horse as the property of Lewis M. Thompson, the defendant, and took the animal into his possession. On March 8, 1911, Harry W. Thompson, the son of Lewis M., brought an action of replevin against the attaching officer, Levenseller, and took the horse thereon, claiming title in himself. A replevin bond in the usual form was given to Levenseller by Harry W. Thompson, as principal, and two sureties. The question of title to the horse was tried out in the replevin suit, and a verdict rendered in favor of the defendant Levenseller, at the October term, 1911; the judgment being for the return of the property and costs.

On December 20, 1911, without the consent or knowledge of Levenseller, a suit was brought in his name against the principal and sureties on the replevin bond, by L. B. Waldron, as attorney for Mr. Meyers, and was entered at the April term, 1912. When Levenseller discovered the pendency of this suit, he employed counsel to represent him, and also requested of Mr. Waldron, who had brought the suit, either a bond or some other form of indemnity against costs. No indemnity of any sort was given. The case remained on the docket until the April term, 1915, a period of three years, when by an arrangement between the attorney employed by Mr. Levenseller and the attorney for the defendants a settlement was effected, the sum of $76 was paid to Levenseller, and the action was entered "Neither party."

At the January term, 1916, Joseph Myers and his attorney, Mr. Waldron, brought this petition, asking that the entry of "Neither party" be stricken off, and the action be brought forward and restored .to the docket of the court. The ground alleged was that Levenseller, without the consent or knowledge of either Myers or his attorney, the parties in interest in the suit, "secretly, collusively, and in fraud, or by mistake and in derogation of the rights of said Myers and Waldron, caused the entry to be made." After hearing at the January term, 1917, the presiding justice ruled that "the prayer of the petition ought not to be granted upon the evidence presented," and the petition was thereupon denied. Upon exceptions to this ruling the case is before the law court.

The exceptions must be overruled and for the following reasons:

L1, 2] We entertain no doubt that the Supreme Judicial Court of this state, being a court of record, has inherent power over its own docket until a valid final judgment is entered in a given case. Until that time it can amend, enlarge, or vacate entries erroneously, improvidently or falsely made. Mistakes may be corrected, and false or fraudulent entries rectified and made to conform to the truth. And this can be done at a subsequent term, as well as at the term when the erroneous or false entries were made. Until the rendition of a final valid judgment, all actions, whether on the docket of the existing or of a former term, are regarded as within the jurisdiction and control of the court. Low's Case, 4 Me. (4...