Bradstreet v. Partridge

61 Me. 335

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1872
• Status: Published

Opinion

Appleton, C. J.

There can be no final judgment when an action is continued for judgment. An action may be defaulted and continued for judgment, and at the next term the default may be stricken off and a nonsuit entered. The disposition of the cause while thus remaining upon the docket is subject to the control of the court. So, in case of a petition for a review, while it remains on the docket there can be no final judgment. . The clerk cannot complete his record while it thus remains pending. The law on this subject -was fully and clearly stated in Bradstreet v. Partridge, 59 Maine, 152.

For some unperceivecl cause, the counsel for the plaintiff saw fit to have a further continuance of the petition for a review. It still remains upon the docket at his instance, for when a case is ready for judgment it is not the clerk’s duty to continue it at his own will and pleasure.

The action of review is a new proceeding. The writ of review is “ to be entered the next term after the review is granted unless leave is granted to enter it at the second term.” R. S., c. 89, § 7. But there can be no judgment granting a review while the petition remains continued upon tlie docket. Botb actions cannot remain together upon the docket. There must be a final disposition of the petition for review before the writ can issue. The slightest attention to the opinion of this court, to which reference lias been made, would have fully informed counsel as to the proper course of proceeding. Plaintiff nonsuit.

KeNt, DicicebsoN, Baiieows, and DaNfoeth, JJ., concurred.