Knight v. Macomber

55 Me. 132

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1868
• Status: Published

Opinion

Appleton, C. ,J.

At the October term of the Supreme Judicial Court, A. D. 1842, Julia Macomber, the plaintiff’s intestate, obtained a divorce from the defendant with an allowance of $44 a year as alimony.

At a term of the late District Court, the alimony for a year remaining unpaid, she recovered judgment for the same and costs. Three several executions were issued, upon each of which the return of "in no part satisfied” was made by the officer having the same for collection. The last execution bore the date of May 30, 1850.

The defendant relies on R. S., 1857, c. 81, § 112. "Every judgment and decree of any court of record of the United States, or any State, or of a justice of the peace, shall be presumed to be paid and satisfied at the expiration of twenty years after any duty or obligations accrued by virtue of such judgment or decree.”

But the presumption thus created may be rebutted. It constitutes no peremptory bar to the maintenance of an action upon such judgment. Brewer v. Thomes, 28 Maine, 81; Denny v. Eddy, 22 Pick., 533.

In the present case this presumption is abundantly rebutted. Three several executions were returned unsatisfied, the debtor, when called upon for payment, replying that he had no property and could not make payment. Referring to this claim, the defendant told Asa G-ile that he should never pay anything upon it. According to the testimony of this witness he put his property out of his hands prior to the divorce to avoid paying what: might be decreed to his wife, and, from that time, has ever had the reputation of being insolvent. From all the evidence introduced, we are fully satisfied the judgment in suit has never been paid.

Judgment for the plaintiff.

Cutting-, Walton, Dickerson, Danforth and Taplet, JJ., concurred.