Dunlap v. Burnham , 38 Me. 112 ( 1854 )

Tenney, J.

— The plaintiff obtained a verdict and judgment against the defendant, in the original action. Upon a review of the same, a verdict was returned for the defendant, on which judgment for costs was rendered. The present suit is an action of debt, upon the judgment first obtained. It is insisted for the plaintiff, that it remains in full force, (notwithstanding the judgment upon the review against him,) for the full amount; — or if not for the whole sums awarded, it is effectual, so far as to protect the ordinary lien of an attorney, which is claimed in this case.

All former statutes, touching reviews, were repealed at the time the Revised Statutes were enacted; hence we are to look to the provisions of the latter alone, upon this subject, for direction in the proceedings.

By R. S., c. 124, § § 8 and 9, it is provided, that the cause shall be disposed of by verdict, nonsuit, default or otherwise, as if it were an original suit. And judgment on the review shall be given, as the merits of the cause upon law and evidence shall require, without any regard to the former judgment, excepting as is herein after mentioned. The exceptions referred to, are where the damages of the former judgment are reduced to a smaller, or increased to a larger sum, than that awarded on the review. § § 12 and 13. These sections provide the manner in which judgments shall be rendered, or offset, so as to do final and complete justice-between the parties.

In those cases, not falling within the exceptions, we are-not to presume that the Legislature either provided an imperfect or uncertain remedy; or omitted to make provision, so that the purpose of the party obtaining the review, and succeeding therein on the final trial, should ever be defeated, unless the language employed will admit fairly, of no other construction.. It is manifest, that it was designed that the judgment to be rendered, “ as the merits of the cause upon law and evidence shall require, without any regard to the former judgment,” was to be such as also to do final and: complete justice between the parties, and to be substituted for the former judgment, making the latter a nullity; and if annulled, no basis for the lien of an attorney can remain.

According to the agreement of the parties, the plaintiff is-to become Nonsuit.

Shepley, C. J., and Rice, Appleton and Cutting, J. J., concurred.