70 Me. 250 | Me. | 1879
At the March term 1876, of the superior court, Cumberland Co., Jane A. Brown recovered a judgment, by default, against Eliza Lunt, this plaintiff; and the execution issued thereon was satisfied in part by a levy upon the real estate of the judgment debtor in the following April.
At the November term 1876, of the probate court, Eliza Lunt was duly adjudged insane and Micaiah H. Bailey appointed her guardian.
On February 5,1877, Eliza Lunt by her guardian, sued out of the superior court the writ in the action at bar to recover the value of the wood cut as before mentioned, which action was tried by the justice of that court without the intervention of a jury, at the October term thereof, 1877; when the judge gave judgment for this defendant, on the ground that the wood in controversy was cut after the levy upon the land covered by the levy by the authority of the levying creditor, and that Eliza Lunt had failed to redeem the premises, within the year allowed by the statute. To this decision exceptions were alleged, the case went to the law court to settle the law raised thereby, and the action stood continued on the docket of the superior court until the January term, 1879 ; when a certificate from the law court, “overruling the exceptions,” having been received, the defendant moved for judgment.
But prior thereto, to wit: on January 15, 1877, a writ of error was sued out of the supreme judicial court, returnable to and entered at the following April term, in behalf of Eliza Lunt, to re-* verse the judgment of March, 1876, of Brown against her, on the ground that she was insane when the writ against her was served and had ever since continued so. At the January term, 1879, of the supreme judicial court judgment was rendered reversing the judgment of Brown v. Lunt, for the cause alleged. Whereupon, at the January term of the superior court, this plaintiff resisted the defendant’s motion for judgment in the action at bar and filed a motion for a re-hearing of the action upon its merits alleging the judgment of reversal on the writ of error and claiming judgment for the plaintiff. The judge of the superior court granted the motion of the plaintiff by rehearing the case, found the defendant guilty and awarded judgment against him for the value of the wood; to all which the defendant excepted.
This question must be decided in the negative. For as already seen, the facts wore found by the justice. The facts found were such, as, by applying the law to them, to warrant his ordering a judgment for the defendant. Now one of the principal facts in issue and forming the basis of the judgment for the defendant was that the defendant derived a legal title to the wood through Brown whose title came by the levy. Iiis finding of that fact was conclusive upon the parties. Mosher v. Jewett, 63 Maine, 84. But the plaintiff’s motion asks the justice to rev ise that finding, even after the law court has in substance ordered a judgment thereon, and find that the defendant had no title to the wood. This he was not authorized to do. For if viewed as a motion in arrest of judgment, K. S., c. 82, § 26 forbade it; while if considered as a motion to set aside the finding because of newly discovered evidence — to wit: the reversal of the judgment which formed the basis of the levy — the justice of the superior court could not entertain it; for that kind of motion, under our practice, is heard only by this court.
There was nothing to be done with this action after the allowance of the exceptions at the October term 1877, except to continue it, until receipt of the certificate from this court; and when that was received judgment should have been entered in accordance therewith under the statute. For if this motion could be entertained and the case re-open ed as to title and what might follow, so could any other and an action might be endless.
Although differing in its facts, we perceive no distinction in principle between this case and Mitchell v. Smith, 69 Maine, 66 ; aud if the plaintiff would avail herself of the fact of reversal of the original judgment, the legal remedy is the only one.
Exceptions sustained.
Judgment for the defendant.