Pierce v. Bent , 1877 Me. LEXIS 73 ( 1877 )

Dickerson, J.

The petitioner seeks a review of an action in which a verdict has been rendered, and affirmed by the law court, against his motion to set it aside as against evidence, &c., and on account of newly discovered evidence. A review is claimed, not upon the ground that there was a mistrial of the case, but because upon the rendition of the verdict the petitioner commenced an action on a claim he had against the plaintiff, in order that he might offset the judgment he might therein recover against the plaintiff’s judgment. The petitioner further represents that he gave the law court notice of the pendency of his suit; that should judgment be rendered against him on the verdict, it might be rendered in term time, to the end that the action might be continued to await the result of the subsequent suit.

The “accident or mistake” relied upon as cause for review is alleged to consist in the fact that the law court allowed judgment to be rendered on the verdict in vacation, pending the second suit, notwithstanding the petitioner’s notice and request. The particular grievance alleged is that on account of this action of the law court, execution has been issued in the action against the petitioner, that he has been deprived of the opportunity of offsetting the judgment he might recover against the plaintiff’s judgment, and has thereby been subjected to the loss of his whole claim on account of the impecuniosity of the plaintiff.

It must be conceded that the application is one of novel impression, and that if a review may be granted in such a case it is difficult to conceive of a case where one would be denied. The statute makes provision for rendering judgments, in vacation, in such cases, and we are not aware of any law or practice that authorizes or requires the law court to construe and administer that statute so as to suit the convenience or necessities of either party to the suit. Certain we are that there can be no “mistake” or “accident” in administering a statute according to its true intent and- meaning, as was done in the case under consideration. The law court overruled the motion and affirmed the verdict in vacation, and the statute gave the plaintiff a right to judgment and execution. There was no “accident” or “mistake” in that, nor was it competent for the defendant in the first suit to interpose in the manner stated in the petition, and thereby delay the rendition of judgment. Non constat that the plaintiff in the cross action would recover judgment to be offset in the mode suggested ; to allow him to keep his adversary in court for such a cause, when he is entitled to judgment, would be to subject him to delay, expense and hardship that the law does not sanction.

As there was no “accident or mistake” in the purview of § 1, clause 7, c. 89, B. S., of course it does not appear “that justice has not been done through accident or mistake.” But if it- was shown that there had been “accident” or “mistake,” it does not appear “that justice has not been done” by reason thereof. It is the failure of justice actually experienced in the case sought to be reviewed, and not future conjectural inconvenience or loss in another case, that the statute contemplates. In other words, it is a mischief accomplished and not one apprehended that this provision of the statute affords a remedy for. “Boiled down,” so to speak, the petition asks for a review, not because the verdict is wrong, or is expected to be reversed by the review prayed for, but to give the petitioner time to recover a judgment against the plaintiff with which to satisfy, wholly or in part, the judgment the plaintiff now holds against him. It is, perhaps, difficult to determine which is the more singular, the ingenuity or the audacity of the petitioner.

The petitioner has no valid claim to a writ of review, as a matter of right under the first paragraph of § 1, chap. 89, B. S., as the words “civil actions” are limited by the subsequent words, “and in the special cases following.”

Writ denied.

Appleton, C. J., Daneorth, Virgin, Peters and Libbey, JJ., concurred.