92 Me. 389 | Me. | 1899
Error to a judgment of the Lewiston Municipal Court. The presiding justice ruled that “no errors appear of record as alleged in the writ.” He might well so rule, for no complete record was produced, only fragments of one. These “ do not necessarily show error, hence the writ of error should be dis
As a sequence to the above ruling, the presiding justice ordered the writ of error dismissed with single costs. ' That was a matter of discretion with him. It was analagous to a nonsuit. The pleadings were inartificial and irregular. No issue seems to have been tendered or joined. The order disposed of the case and is not erroneous. It seems to be appropriate, too, for the want of information upon the merits.
The presiding justice also ordered the judgment below affirmed. This is a non sequitur and unauthorized. A writ of error, in our practice, stands by itself like any other common law action. It is not an appeal that brings into the appellate court the original action, so that if the appeal, that is the plaintiff’s contention, be dismissed, the decree or judgment below remains to be affirmed, for the whole action has been brought up by the appeal when properly taken; when not properly taken, the action has not been brought up and the decree or judgment below cannot be affirmed because not razed by the appeal. To be sure, judgment may be given for either party; but judgment contemplates the retention of the writ as a foundation therefor. Where the writ be dismissed, no other judgment follows. Indeed, the court thereby refuses judgment upon the merits of the action. It refuses to find any other fact than that plaintiff is not rectus in curia.
The order, therefore, affirming the judgment was error, and to this plaintiff’s exceptions must be sustained, leaving the writ dismissed with costs and the judgment sought to be reversed untouched.
Exceptions sustained to order affirming judgment below, otherwise overruled.
