Inhabitants of Madison v. Gray , 1881 Me. LEXIS 76 ( 1881 )

Walton, J.

At a term of the Supreme Judicial Court held at Skowhegan, in March, 1874, the respondent, Eobert D. Gray, was adjudged the father of an illegitimate child, and ordered to pay the mother seventy-five cents a week for its future support. In September, 1878 (more than four years after rendition of the judgment), the town of Madison applied to the court praying that an execution might issue for the amount due under the order; and also praying that the respondent be required to give a bond to the complainant, and also to the town of Madison, to secure the performance of the order in the future, averring that no such bonds were given at the time of the rendition of the judgment. At the hearing at nisiprius the presiding judge denied the prayer of the petitioners; and, to this denial, the petitioners filed exceptions ; and the question now before the law court is whether the exceptions shall be sustained or overruled. We think the exceptions must be overruled. An execution cannot issue in such a case. The court cannot know without proof that there is any thing due under tbe order. Tbe remedy provided by tbe bastardy act is an action of debt. If judgment is recovered in sucb actions then an execution may issue for the amount found to be due, and not before. Tbe ruling upon this branch of tbe case was therefore correct. And upon tbe other branch of the case no error is apparent. The exceptions state no more than that the prayer of the petitioners was denied. Upon what ground the denial ivas based is not stated. It is clear, therefore, that the exception to this ruling cannot be sustained unless the town of Madison had a legal right, under all circumstances, not inconsistent with those stated in the record, to have the order prayed for made. We think they had no such right. Many good and sufficient reasons, not inconsistent with the record, may have existed and operated upon the mind of the judge to induce him to refuse to make the order prayed for. The petition was at most but an application to the discretionary power of the court, and to the exercise of such a power exceptions do not lie.

Exceptions overruled.

AppletoN, C. J., Barrows, Danforth, Peters and Symonds, JJ., concurred.