Look v. Ramsdell , 1878 Me. LEXIS 138 ( 1878 )

Libbey, J.

The motion to dismiss was properly before the court. The docket did not show that it had been acted upon at the previous term. The evidence offered by the plaintiff was inadmissible. There was no motion to correct the docket entry. The evidence contradicted the record.

We think the case brings properly before this court the construction of R. S., c. 89, § 7. This section provides that the writ “shall be entered at the next term after the review is granted, unless leave is granted to enter it at the second term.”

This provision of the statute is derived from the laws of 1826, c. 317, § 5, which reads as follows: “Whenever a review is granted by the supreme judicial court, and the plaintiff’ fails to enter the same at the next term thereof, the entry of such action of review may be allowed at the second term of said court, holden after said review is granted; and the plaintiff shall be authorized to prosecute the same to final judgment.”

This statute was enacted soon after the decision of Hobart v. Tilton, 1 Maine, 399, cited and relied on by the counsel for the defendant, in which the court held that, when a review is granted, 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. We think it perfectly clear that the legislature, having this decision before it, intended to change the rule as held therein, by giving tiie court power to allow the entry at the second term, if the plaintiff fails to enter it at the next term after the review is granted. The language is plain and admits of no other construction.

Has the meaning of this statute been changed by the several revisions %

It first appears in the revision of 1840, c. 124, § 5, in the following language: “The plaintiff in review shall enter the action at the next term after it is granted, unless for special reasons the court on motion grant leave to enter it at the second term.” The language of the revision of .1857 is the same as the present statute.

"We think the legislature, in revising the act, of .1826, by changing its phraseology did not intend to change its meaning; and that, by the true construction of It. S., c. 89, § 7, if the plaintiff fails to enter the writ of review at the next term after it is granted, the court has power, in its discretion, to allow it to be entered at the second term.

Exceptions sustained.

Motion overruled.

Appleton, C. J., Walton, Barrows, DANEORTHand Peters JJ., concurred.