Hobart v. Tilton , 1 Me. 399 ( 1821 )

Mellen C. J.

delivered the opinion of the Court as follows.

The question submitted is whether this action shall be sustained or the writ abated for the reasons which have been urged by the defendant’s counsel.

We have no doubt that the Supreme Judicial Court of Massachusetts, had a right to grant the review', though after the fifteenth of March, 1820; inasmuch as the petition for the review was pending in that Court on that day .--The act of Separation provides that “ all suits” thus pending, were to be heard and determined by the Courts, in v'hich they were then pending. This petition was “ a suit,” within the meaning of that provision. The Court having a right to grant the review, the petitioner, Hobart, had a right to the benefits of the grant by suing out. litó writ of review in this county, where the judgment in the original action was rendered. But on consideration of the subject, we are of opinion that it was not sued cut in due season, and therefore that the action is not regularly before us, and the writ must be abated.—The review was granted in April, 1820.—The first term of the Supreme Judicial Court in this county under the government of this State was holden on the fourth Tuesday of August following. Here was ample time for suing the writ, returnable at that term, instead of which it sued returnable at May term, 1821. A motion was then made and entered on the record for the dismissal of the action for the reasons which have been urged in argument: The defendant has therefore all advantages which he then had of the objections made.—By law a person has three years allowed him, within which he may petition for a review of an action in which judgment has been rendered against him.—-He ought to be satisfied with this indulgence; and having obtained permission to review the cause, many reasons exist why he should not delay the service of the writ.—In the first place the opposite party can-hot take depositions in the cause till after the service delay may operate essentially to his injury -his witnesses may die or remove out of the county ; the memory of facts may be gone, and unnecessary embarrassment and suspense be the consequence.—All these ought to be avoided.—Besides, if the service of the writ may be delayed to a second term, why not to a third or fourth, or as long as the party may incline to delay it ? There is as much reason that the writ should be made returnable at the first term after the review is granted, as that a creditor of an insolvent estate whose claim has been rejected by commissioners, should commence his action at the next following term.—Such has always been the practice, and the law has been considered as requiring it—The settlement of the estate ought not to be delayed.

A review after judgment is to supply the place of a new trial before judgment. When a new trial is granted at common law, the party obtaining it is always expected to be ready at the next term to proceed to trial: the same reason exists in case of review ; and in neither case should further delay be granted unless obtained on motion in open Court in the usual manner.—There may be circumstances at the time of granting a review, which would render it impossible, or extremely incon-venienh to sue out the writ of review at the next term; as where the review is granted in a county at a distance from that where the writ must issue and be served: though such cases would Very rarely occur. When they do occur, the Court, when .granting the review, would authorise it to be sued out at the second term, by way of exception from the general rule.

It is therefore to be understood that when a review is granted, pursuant to our statute, the writ must be entered at the next following term ; unless otherwise specially provided in the order of Court by which the review is granted.

This opinion renders it unnecessary to decide upon the objection which has been made to the indorsement of the writ.

Writ abated.