Starbird v. Eaton , 42 Me. 569 ( 1856 )

Appleton, J.

The plaintiff in error, being duly summoned, was defaulted in the original action, the judgment in which he now seeks to reverse.

It is objected, that the notes upon which judgment was rendered, do not correspond with those set forth in the declaration. The purpose of a writ of error, is to enable the Justices of this Court to examine the record upon which a judgment has been rendered in this or in an inferior Court, and, on such examination, to affirm or reverse the adjudication. The Court will not take notice of a note described in the assignment of errors, as filed in the case, any more than a deposition or other proof offered to sustain the declaration. Storer v. White, 7 Mass. 448. The papers presented to a common law Court, and acted upon as evidence, are no part of the record. Kirby v. Wood, 16 Maine, 81. When the error is one of law, there is nothing upon which the Court can act except the transcript of the record. Valentine v. Norton, 30 Maine, 194.

There may have been a miscalculation of interest. When the judgment is for a sum greater than the ad damnum, it may be erroneous: but the error may be cured by a remittitur of the excess entered at a subsequent term. Hemenway v. Hicks, 4 Pick. 497. In the case before us, the sum for which judgment was rendered does not exceed the ad damnum. The Court will not reverse a judgment for a mistake in casting interest. Whitwell v. Atkinson, 6 Mass. 272. The remedy in such case is by petition for review.

The common law did not permit the joinder of errors of law and of fact in the same process. That is now allowed by an Act approved April 22, 1852, c. 269, § 3.

The plaintiff in error, seeks to reverse the judgment rendered against him, on the ground that the notes in suit in the original action had been fraudulently attested,' after they had passed from the hands of the maker, and were in those of the payee.

But if there be a fraudulent attestation of the notes in suit, or of any of them, in the judgment sought to be reversed, the party injured cannot take advantage thereof by writ of error. If the fact be as alleged, it might have furnished a good defence to the original action; but in that, having been duly summoned, the plaintiff in error submitted to a default. Neglecting at the proper time to interpose what might have constituted a defence, he cannot now reverse the judgment rendered against him for error. He might as well seek to reverse it by this process, because there may have been an original failure of consideration, or a subsequent payment of the notes, for the recovery of which the original action was brought. The remedy of the party aggrieved, if any, is by petition for a review. Exceptions overruled.

Tenney, C. J., and Rice, Hathaway, Goodenow and Cutting, J. J., concurred.