# Wintle v. Wright > Supreme Judicial Court of Maine · September 20, 1955 · 151 Me. 212 URL: https://www.frixlaw.com/law-library/cases/9648517 ## Case - **Full name:** Kenneth J. Wintle vs. Carl R. Wright, Admr. Estate of George A. Libby - **Court:** Supreme Judicial Court of Maine - **Decided:** September 20, 1955 - **Citations:** 151 Me. 212; 117 A.2d 68; 1955 Me. LEXIS 53 - **Precedential status:** Published - **Opinion:** Dissent by Beliveau - **Judges:** Williamson, Webber, Tapley, Beliveau, Tirrell - **Cited by:** 6 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9648517 ## Opinion text Beliveau, J. (dissenting) It is with regret that I disagree with the majority opinion. While the amount involved is insignificant the principles are of such importance to me I feel constrained to give my reasons for dissenting. As stated in the majority opinion, this matter is before us on a demurrer by the defendant to the plaintiff’s declaration. The defendant may, of course, if he sees fit, take advantage of a defective declaration (one that does not state a cause of action), but if the facts alleged are not true, then he, the defendant, as a member of the Bar and as an officer of this court, should have demanded and been given a hearing on the merits. Having deliberately chosen his course of action he may not now complain that the merits have not been passed upon. In Lovejoy v. Webber, 10 Mass. 101 , audita querela was brought by the plaintiff to effect the discharge of a judgment obtained by the defendant after an action on a note had been fully satisfied by the plaintiff. The defendant demurred, and claimed payment might have been pleaded by Lovejoy in bar to the action. On this phase of the case the court said: “If the facts averred in the writ are true, and these are now to be understood as confessed, the plaintiff in this action, — defendant in the action wherein a judgment, as he alleges, has been fraudulently recovered against him, — had no opportunity of pleading the payment or discharge of the demand which he had adjusted.” I do not mean to intimate that the defendant, because an attorney, may not contest the action by demurrer, and if *220 this were an action other than one where the defendant’s conduct as an attorney is involved, I would say nothing about it. The demurrer, in this case, and for the purpose of this case only, admits, as the majority readily concedes, the allegations of facts. While the opinion does not in any way criticise the conduct of the defendant it nevertheless states the court will not “condone or approve anything less than the most meticulous care and responsibility on the part of a member of the legal profession when dealing with a layman.” The admitted facts show much “less than the most meticulous care and responsibility” by the defendant and the court should not condone or approve his conduct. The defendant understood the purpose of a demurrer. Its effect, insofar as this case is concerned, is much the same as if he in a trial on the merits had admitted, under oath, the allegations made against him by this plaintiff. The court, in an imaginary statement attributed to the defendant, quotes him as saying “assuming for the moment everything that you have alleged *****” this remedy does not lie. The time element here is not involved and once the demurrer is sustained it must stand on the records of this court, forever, as an admission of the facts alleged. These admissions are not “for the moment” or any specific length of time. In Lovejoy v. Webber, supra, the court has this to say about audita querela: “The remedy is said to be in the nature of a bill in equity. An allegation of fraud and deceit seems to be essential, and the case supposed must be one where legal process has been abused, and injuriously employed to purposes of fraud and oppression. But allegations of abuse are not to be heard as a ground of complaint, where the party complaining has already had a legal opportunity of defence; or when the injury, if any has been sus *221 tained, is to be attributed to his own neglect; for, otherwise, legal proceedings would be endless. It is a rule, therefore, that an audita querela does not lie, where the party has had time and opportunity to take advantage of the matter which discharges him, and has neglected it.” The admitted facts show that on the 9th day of December, 1952, the defendant, in his capacity as administrator of the estate of George A. Libby, and acting as counsel for himself, brought suit against the plaintiff here and declared on a note dated May 12, 1949 for $200 payable on demand with a credit of $30 on December 10, 1951 and a further credit of $50 on January 3, 1953. The receipt given the plaintiff by the defendant for the payment of $50.00 on account, January 3, 1953, contained a stipulation that $159.54 was the balance due and would be accepted as such, if paid before January 10, 1953. On the 10th day of January 1953 the plaintiff tendered, and the defendant accepted a check, dated January 9, 1953, for $159.54 with the notation on the receipt given this plaintiff, “writ entered in court before received check.” January 10th was on a Saturday, three days before the opening of the January term. The plaintiff did not appear, was defaulted and judgment recovered against him for $163.94 and cost taxed at $11.95. On the 9th day of February the same year, the defendant obtained an execution against the plaintiff for the full amount. Nothing more was done until the 19th day of November of that year when the defendant requested a renewal of the execution and certified that $159.54 had been paid on the first execution. This was false and known by the defendant to be false. The money was paid before entry of the writ and long before judgment. On the second execution the Clerk of Courts noted that $159.54 was credited on the former execution. On the 11th *222 day of January 1954, nearly a year after judgment, the defendant here, in his dual capacity as administrator and counsel for himself, petitioned the Judge of the Western Somerset Municipal Court of Skowhegan for a full disclosure of the plaintiff’s business and property affairs. In that petition the defendant, knowing the statement to be untrue, alleged there was due him, in his capacity as administrator, $176.89. The plaintiff did not appear, was defaulted, and a capias for his arrest issued. Nothing more was done until the 23rd day of March 1954, when the defendant returned to the Superior Court the second execution with an endorsement that $159.54 had been paid. The third execution was issued by the court for a total of $175.89 plus $1.50 with a notation “$159.54 credited on former execution.” On March 30., 1954 the defendant gave this execution to an officer with instructions to collect $28.58 plus his fees or otherwise commit the plaintiff. The plaintiff was arrested on April 27, 1954 and in order to obtain his release from arrest gave a statutory bond to the defendant in the amount of $75. It is well to point out the parties did not stand on an equal footing and that the advantage was all with the defendant, who was well versed in the law and familiar with judicial procedure. The plaintiff, as a layman, did not have this knowledge, and was without counsel to advise and guide him. This is one of the elements which makes this case important and the conduct of the defendant subject to close scrutiny. The plaintiff was to pay the defendant $159.54 before the 10th day of January 1953 and that sum was to be accepted in full settlement of the action then pending and returnable in the Superior Court on Tuesday of the next week. *223 It is significant that the defendant accepted the sum of money, although a day late, which he had agreed to accept, and, as far as the record is concerned, said nothing about prosecuting the action. The plaintiff, a layman, having paid the amount agreed upon, had every right to believe, as any layman would, that the payment settled once and for all his liability on the original note. It is true that the receipt given by the defendant acknowledged the money as payment on the note with a notation that the writ was entered in court before this payment was received. The majority opinion states that this payment, “for aught that appears to the contrary, was given and accepted as a payment on account I cannot see how the court can come to that conclusion, because all there is in the case bearing on this point is the receipt of January 10, 1953. The plaintiff having paid the amount which the defendant stated he would accept in full satisfaction had the right to, and would believe there was nothing further for him to do. The notation that payment was “on” the note and that the writ had been entered in court was not the doings of the plaintiff. The receipt did not state that payment was on account and the language used by the defendant was his own and, in my opinion, self serving. Acceptance of the receipt by the plaintiff did not change the picture in the least. The plaintiff was not informed the writ would be entered and the action prosecuted. To fortify this further, the declaration alleges that the payment was in full of the indebtedness demanded by the defendant. This allegation is admitted by the defendant’s demurrer. The plaintiff had not on January 10, entered his writ and it could not be entered until the opening of the court, three *224 days later. Up to that time, the defendant had complete control of the situation and could have disposed of the action without any extra expense or cost to him, by marking the action “mis-entry,” which is the custom and practice always resorted to when the situation requires it. It was the duty of this defendant to inform the court that $159.54 had been paid. The defendant ignored his oath and violated the ethics of our profession when he took judgment for the full amount, without giving full credit for what was paid him the Saturday before. This, of course, done knowingly and with full knowledge of the situation by the defendant, was a fraud on the plaintiff and the court. In the so-called disclosure petition brought on January 11, 1954, the defendant informed the disclosure commissioner that $176.89 was still due — this too, was glaringly false, as the defendant well knew. The plaintiff here did not appear to disclose, was defaulted, a capias execution issued for his arrest and he was arrested. The plaintiff has established fraud and deceit which the court in Lovejoy v. Webber, supra, said was necessary in audita querela when legal process has been abused. That decision goes on to say that this process should not be resorted to where the party complaining had a legal opportunity to defend and failure to defend was attributed to his own neglect. It does not apply here because the plaintiff, the defendant in the action on the note, had made a complete settlement on January 10, 1953 and had no reason to suspect or believe that the writ would be entered in court and judgment obtained. He had no notice until January 11, 1954, or nearly a year later, that judgment had been obtained against him, without any credit for the January 10 payment. Why the defendant did not make demand for payment or attempt to collect the execution for a vear, is not established. *225 The plaintiff was not negligent nor can negligence be attributed to him where he had no knowledge or information of the situation, as it existed. As I said in the beginning of this opinion, I dislike to disagree with the majority as I have in this dissenting opinion, but a situation such as this must be faced. The public must know and feel that our courts do not and will not hesitate to condemn unprofessional conduct on the part of one of its officers. I do not agree with the majority opinion that audita querela does not lie in this case or that to so hold here would “destroy the universally accepted limitation upon the use of the remedy, and to invite a flood of litigation attacking the validity of the judgment of our courts.” If litigation occurs as a result of an opinion favorable to the plaintiff, our court will not hesitate, as it has done in other cases in the past, to deny this process where a litigant is not entitled to it. That situation must be met when it occurs. This defendant must not be absolved of responsibility with the idea in mind that by so doing, further litigation in this respect will be avoided. I would sustain the exception to the demurrer and hold the defendant to account. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648517. Public record. Not legal advice.