Sherman v. Ward

73 Me. 29, 1881 Me. LEXIS 4

• Court: Supreme Judicial Court of Maine
• Decided: October 21, 1881
• Status: Published

Opinion

Appleton, C. J.

This is a petition for a review. The petitioner, a resident in a foreign jurisdiction, was defaulted without appearance, and judgment was rendered against him in damages for one thousand dollars and costs.

A review may be granted of right in certain cases when the default is without appearance. R. S., c. 89, § 1, case 1st; or it may be granted as matter of discretion. Here the presiding justice granted a review as a matter of discretion. Under the circumstances of the case, it was a judicious exercise of discretion. To the exercise of the discretionary power of the court, exception will not lie. A petition for a review is like a motion for a new trial. It is addressed to the discretion of the court. Boston v. Robbins, 116 Mass. 313.

It is urged that the default occurred through the lack of memory on the part of the counsel retained, but that was a matter for the consideration of the justice granting the review. In the English court, when the plaintiff was nonsuited through the neglect of the . attorney in seasonably instructing counsel, the case having been called sooner than was anticipated, the court granted a new trial, upon the payment of costs by the attorney. Townley v. Jones, 98 E. C. L. 288. In this case no conditions were imposed, and whether they should be, was within the discretion of the justice granting the review. Jones v. Eaton, 51 Maine, 386.

Exceptions overruled.

Walton, Barrows, Danforth, Virgin and Symonds, JJ., concurred.