Butterfield v. Briggs

42 A. 229, 92 Me. 49, 1898 Me. LEXIS 78

• Court: Supreme Judicial Court of Maine
• Decided: August 10, 1898
• Status: Published

Opinion

Emery, J.

We think the issuance of this writ of error was premature. Such a writ is available only after final judgment when the only remaining step is execution. Stephen on Pleading, (Tyler’s Ed.,) 142; Tidd’s Practice, 1064; Wallace v. Middlebrook, 28 Conn. 464.

No final judgment for or against the plaintiff in error appears to have been rendered. In the proceedings described she was not summoned to answer to any claim of that plaintiff against her. Her default through non-appearance did not confess any such claim nor subject her to judgment therefor. The plaintiff in that suit obtained no judgment against her, but, as to her, only a judgment and execution against the defendant’s goods, effects or credits in her hands or possession. At the most, her default was only prima facie evidence against her that she had such goods, effects or credits in her hands or possession. It gave the plaintiff in that action no right to execution against her, but only the right to maintain, upon certain conditions and within a limited time, a suit by scire facias in which he may or may not recover judgment against her.

She has no occasion for a writ of error until after a judgment against her in a scire facias suit. That suit may not be brought, and if brought may not result in that judgment. Townsend v. Libbey, 70 Maine, 162; Cairns v. Whittemore, 88 Maine, 501; Crockett v. Drew, 5 Gray, 399.

Exceptions sustained.t