West v. Jordan , 62 Me. 484 ( 1873 )

Barrows, J.

Case for an injury suffered by the female plaintiff through the carelessness of defendant’s servant. After verdict for plaintiffs at the April term, 1871, defendant filed exceptions and motion to set aside the verdict, which were overruled at the July term, 1872, prior to which, in November, 1871, Mrs. West died. But no suggestion of her death had been entered on the docket; and when the certificate of the decision of the Law Court was received, the clerk made up and recorded the judgment as of the April term, 1872. In November, 1872, the husband was appointed administrator on the estate of the wife,, and at the January term, 1873, filed a motion that the action should be brought forward “that the proper judgment may be made up.”

Against the objection of the defendant, the presiding judge allowed the motion, and thereupon the case was brought forward and, under the direction of the court, an entry was made setting forth the death of the wife, the withdrawal of the husband as a party, and a discontinuance on his part as an original party, his appearance to prosecute the suit as administrator .of the wife, and the rendition of judgment on the verdict in his favor as administrator.

To the allowance of the motion and all these proceedings the defendant excepted. That the proceedings would have been correct and appropriate if they had been had before the defendant’s exceptions and motion to set aside the verdict were overruled, was settled in Norcross v. Stuart, 50 Maine, 87. But the defendant objects that one judgment has already been rendered and recorded against him, which will remain until reversed by some appropriate process, and he suggests danger of a double liability. We think the danger is more imaginary than r'eal. We think the old record is effectually vacated by the allowance of this motion to bring forward the action “that the proper judgment may be made up;” and that though this could not be done where a judgment had been regularly rendered, it may be in a case like this, where one has been improvidently entered which would, unless corrected, be absolutely invalid.

The case is not a novel one. In Stickney v. Davis, 17 Pick., 169, similar proceedings seem to have been had, and Shaw, O. J., remarks: “where a cause, after argument, is held under advisement, the court will order a judgment to be entered nunc pro tunc, to avoid entering an erroneous judgment, when a party has died in the mean 'time. When it clearly appears that no action has been had on the judgment, or the execution, if one has been issued, has been returned to the files unexecuted, and where the rights of third persons cannot be affected, there seems to be no reason why the same thing should not be done by vacating the entry of judgment and bringing the action forward. This ought to be done with great caution, and with strict regard to the rights of others.” That this caution was observed in the case at bar, the associates of the learned judge who directed these proceedings (and who has since retired from the bench) cannot doubt.

The defendant was heard upon the motion, or had an opportunity to be heard. There is nothing in the exceptions to indicate that any movement was ever made to enforce the judgment thus improperly entered and recorded, or that, with these proceedings spread upon the record, there could be any danger of harm to the defendant, or to any third party, from the summary correction of this mistake. The clerk should make a reference to the subsequent proceedings in the case on the face of his first record, and then its invalidity is established and patent.

Among the records of judgments which are irregular and will be stricken out on motion, we find mentioned those which are entered after the death of a party. Freeman on Judgments, § 97; Holmes & al. v. Howie, 8 Howard’s N. Y. Practice Reports, 384.

Why should it not he so? The court cannot proceed in a case where there is a want of living parties. Hnless the case is one which can properly go forward in the name of survivors and a discontinuance as to the deceased is duly entered, every act done in the case except those which make known the fact of decease and tend to supply the vacancy, must be irregular and null until some living representative of the decedent appears. Then only can a judgment be regularly rendered.

Exceptions overruled.

Appleton, C. J., Walton, Dickerson, Daneorth, and Yirgin, JJ., concurred.