Atkins v. Wyman

A judgment will tie vacated where an appeal therefrom has been allowed ; and an action of debt cannot be maintained upon it. The judgment of the appellate court will be conclusive until reversed, although the appeal in the case was improperly taken and prosecuted.

Debt, on a judgment alleged to have been rendered by the District Court, in the county of Franklin, in the year 1847. At the trial, before Hathaway, J., the plaintiff introduced, (subject to objection of defendant that the record was not authenticated,) a copy of so much of the record of judgment as was extended on the records of said Court, and proved that A. B. Caswell, who was clerk of said Court, in 1847, had not resided in this State within three or four years last past. Plaintiff also introduced, subject to objection, the docket entries under said action, one of which is “judgment for plaintiff on statement of facts — defendant appeals.” In defence, was introduced, subject to objection, a copy of the record of the proceedings and judgment of the Supreme Judicial Court for the county of Franklin, in an action between the parties, and plaintiff admitted that it was the record of the same case appealed from. The parties, thereupon, agreed that the case should be submitted to the full Court, on report of the evidence. The record of the District Court does not show that an appeal was taken from the judgment there ordered. No writ of execution was ever issued thereon. It appears, by the record of the Supreme Judicial Court, that the appeal was entered at the June term, 1857, and the questions of law arising in the case were argued at the next law term, and afterwards the' Court ordered that the plaintiff become nonsuit. And, thereupon, judgment was entered up, and execution issued for the defendant’s costs. 1. An appeal from a judgment upon an agreed statement of facts cannot be taken from the District Court where the action ■was originally brought before a justice of the peace. Phillips v. Friend, 11 Maine, 411; Giles v. Vigereaux, 32 Maine, 565 ; Seiders v. Creamer, 22 Maine, 558; R. S. of 1841, c. 97, § 13; Art. of Amend. § 12; Simmons v. Lord, 18 Maine, 351; Kim-ball v. Moody Sj al., 18 Maine, 359; New Gloucester v. Dan-ville, 25 Maine, 492; Putnam v. Oliver, 28 Maine, 442; Holt v. Barrett, 29 Maine, 76 ; English v. Sprague, 32 Maine, 243 ; Adams v. Adams, 15 Pick. 177. 2. An appeal taken where no appeal lies is a mere nullity, and an execution or an action of debt may be sued out upon the judgment appealed from. Campbell v. Howard, 5 Mass. 376; Com. v. Messenger, 4 Mass. 462, 471. 3. The proceedings in the Supreme Judicial Court in the original suit being a mere'nullity, were irrelevant and inadmissible. The plaintiff here, therefore, is entitled to recover.