Shepherd v. Rand

The opinion of the Court was drawn up by

Cutting, J.

The case finds that, at the April term of this Court, 1859, the report of the referee was accepted in favor of the defendant, and for his costs, and that “judgment was ordered thereon”; that, at the succeeding October term, the defendant, for the purpose of excepting to the ruling of the Judge upon a question of costs, made a motion, to bring the action forward, and it was so ordered. To which ruling, the plaintiff, considering himself aggrieved, has excepted; and the question arises whether the Judge, under the circumstances, was justified in sustaining the motion.

Upon this subject, the law is well stated in Lothrop v. Page, 26 Maine, 119, which is, that “Every court of record has power over its own records and proceedings, to make them conform to its own sense of justice, so long as they, remain incomplete, and until final judgment has been entered.” And further, “It is the well established practice and course of proceeding in such courts, to regard all actions, in which a final judgment has not been entered, whether on the docket of the existing, or a former term, as within the jurisdiction and control of the Court.”

And so, in Sawtelle, pet’r, 6 Pick., 110, the Court remark; “ We are of opinion that, there having been no judgment, it was within the discretionary power of the Court to take off the default, as much as it would have been to order judgment. The case remaining on the docket unfinished, they had jurisdiction over it to sustain either motion.”

Rut those cited were not like the present case. Here the final judgment had . been rendered and the parties were out of Court — the judicial power was exhausted, and to be succeeded only by that of the ministerial. The taxation of costs was only incident to the judgment, and, if taxed and adjudicated at the same term, might have been the subject matter of exceptions; but not so, if taxed afterwards, when the party selects his tribunal, and, whether its decision be satisfactory or otherwise, both parties must submit, and the party dissatisfied cannot afterwards resort to another jurisdiction, to be created by nullifying a final judgment, not by any process known to the law, such as error or review — not for the purpose of making the records and proceedings conform to the Court’s own sense of justice, but for the sole object of allowing a. negligent party to take advantage of such negligence. A Judge at Nisi Prius has no such discretion.

The plaintiff’s exceptions are sustained, and, consequently, those of the defendant are overruled.

Tenney,-C. J., Appleton, Goodenow, Davis and Kent, JJ., concurred.