Whitney v. Johnston , 99 Me. 220 ( 1904 )

Savage, J.

This bill in equity to remove a cloud upon the title to real estate, has once before been before the law court. The court being of opinion that plaintiff’s remedy, if any, was at law, and not in equity, sent down the following mandate, “Bill dismissed with costs.” The bill of exceptions states that no costs have been taxed or execution issued, and we assume that no formal, final decree has been signed by a single justice, although the bill is silent upon this point. After the mandate was received, the plaintiff began a real action against the defendant to recover the same real estate, and filed in the equity suit a motion to stay judgment and execution in that suit, until the real action should be determined, in order that such sums as she might recover in that action for damages and costs might be set off against the costs in the equity suit. The justice sitting below ruled that he had no power to grant a motion at that stage of the cases, and accordingly denied the same, to which ruling exceptions were taken.

We think the exceptions must be overruled. Revised Statutes, chap. 79, sect. 22, provides that after the mandate is received from the law court a “decree shall be entered therein by a single justice, in, accordance with the certificate and opinion of the law court.” The decree must follow the mandate. A single justice cannot enlarge or limit or modify the scope of the mandate. He cannot hinder or delay its execution. He must enter the decree in accordance with the mandate, and then he can only cause the decree to be executed. He may, no doubt, issue subsidiary process, if necessary, to enforce the decree, but he cannot issue a restraining order to prevent or delay its enforcement. Nothing remains after the mandate is received except to enforce it according to its terms.

Exceptions overruled.