Lovell v. Kelley , 48 Me. 263 ( 1860 )

The opinion of the Court was drawn up by

Appleton, J.

-It seems that Josiah Lovell, the defendant in the judgment sought to be reversed by his administratrix, was an inhabitant of this State, and that the writ in the original action was served by leaving a summons at his last and usual place of abode. This is one of the modes of service prescribed by statute. There is, therefore, no error on the face of the proceedings.

It is insisted the judgment should be reversed, because, at the time of the service of the writ on him, the plaintiff’s intestate was absent from the State, had no actual notice of the pendency of the suit, and did not return till after judgment. But, in such case, ample remedy is afforded by review, for which provision is made by R. S., 1841, c. 115, §§ 7 and 8. Holmes v. Fox, 19 Maine, 107.

When a suggestion is made of the absence of a defendant, it is a matter of discretion to enter up judgment on default, or to continue the action from term to term, not exceeding twice, unless for special cause. R. S., 1841, c. 115, § 3. The exercise of this discretion is not a matter of error.

In the original action there was a regular judgment and award of execution. If, in such case, an execution afterwards irregularly issue, it is not a good cause for a writ of error to reverse the judgment. In Johnson v. Harvey, 4 Mass., 483, the plaintiff sued out his execution without giving the bond prescribed by statute, when the defendant is without the State, but the Court refused to reverse the judgment for that cause.

Papers presented to a common law Court, and acted upon as matter of evidence, are no part of the record. Kirby v. Wood, 16 Maine, 81. A judgment will not be reversed for errors in the computation of interest. Mistakes in the amount occurring in the rendition of judgment, are to be corrected by review. Starbird v. Eaton, 42 Maine, 569.

Judgment affirmed with costs for defendant in error.

Tenney, C. J., Rice, Goobenow, Davis and Kent, JJ., concurred.