| Me. | Nov 30, 1903
Edmund Thomas, Ex’r, sued out from the court in Knox County an original writ of attachment in an action at law against Mary E. Thomas. In the writ she was described as “of Philadelphia, in the State of Pennsylvania, and now commorant in South Thomaston in the County of Knox.” Upon this writ the officer made return that he had “attached a chip, &c.” and “summoned the said defendant by leaving at her last and usual place of abode a summons for her appearance at court.” This writ was
I. In the present proceeding the first question is whether the defendant in that action, thus dismissed after hearing on her motion, became thereby entitled to costs as “the prevailing party,” under U. S. (1883), c. 82, §§ 117, 124. It is contended that she was not a “party” at all within the meaning of that term, because she had not been legally served with process, and had .not appeared to answer to it. This is equivalent to contending that her declaration (or that of her counsel) that she appeared only to move to dismiss and for no other purpose, barred her from having any standing in court as a party.
We do not think the contention can be sustained. Whatever she or her counsel stated by way of qualification or limitation of her appearance, she did appear in the court and in the action, and was allowed to file a motion in the case and was heard upon it, and the motion was sustained. It has long been the practice in this State to recognize an appearance for such a purpose and to hear and determine the question presented, even though the defendant declares that he appears for that purpose only. It certainly is within the court’s power to do so. It is for the interest of the court, as well of the litigants, to have the question of the sufficiency of an attempted service determined in limine. It has been expressly held in some jurisdictions that such was the defendant’s right, of which he was not deprived by any attempted limitation of the purposes of his appearance. National Furnace Co. v. Moline Malleable Iron Works, 18
Blit this question of right is not necessarily involved here. Whether the court could lawfully have refused to recognize and to entertain her motion until she appeared generally without limitation as to purpose, need not be decided here. Nor is it necessary to decide here whether her attempted limitation of her appearance was of any avail; whether having appeared for any purpose she did not subject herself to the jurisdiction of the court for all purposes. In this case the court, as it had the power to do, did recognize her, did entertain her motion, and heard her upon it without objection, and rendered judgment. If, at the time of this hearing and judgment, the defendant was not a “party” in the action what was she? Why did the court hear her at all if she was not a party to the action? Why did -the law court hear her? Was either hearing ex parte? Was there only one party to all these proceedings and that one the party resisting them? It seems clear to us that after the defendant’s appearance had been recognized as sufficient to allow her to file her motion and the motion was allowed to be filed, there were then two parties before the court, and those the parties to the action, the plaintiff and defendant. The defendant, by her motion allowed to be filed, tendered an issue in law; that issue was joined and there was a trial of it to the court, and a judgment rendered upon it, which judgment was a final judgment in the action itself. This issue, trial and judgment were necessarily between two parties, the plaintiff and defendant in the action. Pomroy v. Cates, 81 Maine, 377, 379.
It was suggested at the argument of this present issue that the defendant should be regarded as having appeared as amicus curiae only. But she did not appear as amicus curiae, nor did her counsel. She appeared as defendant, was recognized as defendant, was allowed to file her motion as defendant, and was heard as defendant. The court had the power .to recognize and hear her as defendant. The counsel appeared for her and moved on her part, as it was held in Skillman v. Coolbaugh, 9 N. J. L. 246, he was limited to do, if he
We think it clear the defendant was a party, that she prevailed, and that the judgment of dismissal in her favor carried costs by force of the statute. We find no cases in this State in conflict with this view. In Tibbetts v. Shaw, 19 Maine, 204, it was held that the writ itself was void for want of the court seal. The question of costs was not presented and the remark about it was mere dictum. Hodge v. Swasey, 30 Maine, 162, was a complaint for costs in an action not entered and in which no service was attempted to be made upon the defendant. Cases about costs in petitions for partition are not applicable since a petition for partition is not an action within the purview of the statute cited. Counce, Petr., v. Persons Unknown, 76 Maine, 548. In Mudgett v. Emery, 38 Maine, 255, the decision was simply that the party claiming costs had not prevailed in the action. In Jones v. Sutherland, 73 Maine, 157, the writ did not contain the name of the plaintiff. There was no plaintiff against whom a judgment could be rendered. Steward v. Walker, 58 Maine, 279, was a trustee process. No notice of any kind was attempted to be given the principal defendant. He did not assume to appear till several terms after the return term. It was held that he was too late to tender a motion to dismiss. In the opinion the court said: “If
called in by a defective notice, he (the defendant) might maintain such dilatory plea as the facts would authorize. In the case at bar the defendant was called in by a defective notice and appeared and filed her motion to dismiss within the time limited for dilatory motions or pleas.
II. Having thus held that the defendant in the action Thomas v. Thomas, 96 Maine, 223, was the prevailing party in the disposition of that action, it follows that the judgment in that case was also that she recover her legal costs, though no mention of costs was made by the presiding justice who dismissed the action, nor by the law court which overruled the exceptions to that dismissal. The law ex proprio vigore added the recovery of costs to the decision of the court without
In this case, however, the clerk in recording the judgment after receiving the certificate of the decision of the law court, omitted all mention of any judgment or order as to costs. The defendant seasonably filed her taxation of costs and asked to have them passed upon by the clerk and execution issued, but the clerk refused to consider the application, or issue execution, on the ground there was no judgment for costs.
The record as made up by the clerk does not show any such judgment, and hence the defendant in her petition now before us asks the court to have the record corrected so as to show a judgment for costs as well as for dismissal of the action.
The plaintiff, the respondent here, insists that this cannot be done on motion or petition, even after notice and hearing, but only by writ of error or petition for review. If the error or omission were one made by the court itself then the respondent’s contention would have foundation. In this case, however, the error or omission was not that of the court but that of the clerk, a ministerial officer. He did not make up and record the full judgment really rendered. The record he made does not express the actual judgment in full. The court has ample power to correct erroneous or incomplete records to make them exhibit accurately and fully the judgments rendered; certainly upon motion, notice and hearing, and often of its own motion without either. Lewis v. Ross, 37 Maine, 230, 59 Am. Dec. 49; Willard v. Whitney, 49 Maine, 235; Rockland Water Co. v. Pillsbury, 60 Maine, 425; Balch v. Shaw, 7 Cush. 282; Frink v. Frink, 43 N. H. 508, 80 Am. Dec. 189, 82 Am. Dec. 172.
The presiding justice having ruled as matter of law that this petition could not be sustained on the facts stated, the decision must be, Exceptions sustained,