Rule 62.Stay of Proceedings to Enforce a Judgment

The 1966 amendment of Rule 62(h) was taken from a 1961 amendment of F.R. 62(h). It substituted a simple reference to “the conditions stated in Rule 54(b)” for the original reference to judgment “on some but not all of the claims.” M.R.C.P. 54(b) picked up a proposed 1955 amendment to F.R. 54(b), not then adopted by the Supreme Court, which added a reference to multiple parties to the provision for final judgment on less than all of multiple claims in an action. When the amendment to F.R. 54(b) was finally adopted in 1961, it was noticed that a conforming amendment to Rule 62(h) was required. Its omission from M.R.C.P. 62(h) was an inadvertence.

Reporter's Notes — December 1, 1959

This rule follows neither Federal Rule 62 nor present state practice. Its purpose is to come as closely as possible to the essentials of present practice and still fit within the framework of a set of rules based for the most part upon federal procedure. The merger of law and equity, the abolition of terms as measuring the time for doing any acts under the rules, and the abolition of exceptions compel departures from existing methods of appellate review. Review of all actions, legal or equitable, is by appeal as in the federal system. Rule 73. See Reporter's Notes to Rule 54.

The federal procedure with respect to judgment and execution does not, however, seem satisfactory. It gives an automatic ten-day stay of execution after entry of judgment to give the parties time to decide what, if any, post-verdict motions are to be made. The court may give a further stay pending the disposition of any such motions, but if an appeal is taken there is no further stay pending appeal unless the appellant gives a supersedeas bond conditioned upon full satisfaction of the judgment. If no supersedeas bond is given, the prevailing party may obtain execution while the appeal is pending. He must, of course, repay what he has received in the event of a reversal of the judgment.

Under present Maine law, on the other hand, a case in which a bill of exceptions has been filed before the end of the term in which it was tried is marked "Law" and does not go to judgment until after rescript from the Law Court. This means that there can be no execution until that time. A case where no exceptions are filed goes to judgment as of the last day of the term, and execution can be taken out at once. The result is that a defendant can by filing exceptions delay execution until the Law Court has acted and there is no occasion to require him to give any security for the satisfaction of an ultimate judgment.

Rule 62(a) provides that no execution shall issue until the time for appeal has expired, and Rule 62(e) says that the taking of an appeal shall stay execution during the pendency of the appeal. This approximates present practice in cases where exceptions are filed, but the 30-day appeal period will increase the delay in getting execution in cases where the defeated party has no intention of litigating the matter further. It does not seem desirable thus to delay execution in the routine collection type of case in which exceptions are unlikely and which would go to judgment at present at the end of the term.

Rule 62(c) is designed to make it possible to get an immediate order for execution in appropriate cases. A winning plaintiff may move for such an order, which the court has discretion to grant "for cause shown." The normal cause would be that the case is one in which there is no likelihood of an appeal. The rule goes on to provide that no such order shall issue if opposing counsel represents to the court that he intends to appeal. This representation is expressly made subject to the obligations set forth in Rule 11, calling for the attorney's good faith. It is not believed that a Maine lawyer would make a false representation of this intention, but he might very properly represent that he has been unable to get a decision from his client. Presumably he would then be afforded a reasonable time to get instructions.

The rule continues with a provision that at any time prior to appeal or during its pendency the court may on a showing of good cause order a party against whom execution is denied under this Rule 62(c) to give a bond conditioned upon satisfaction of the damages for delay, interest and costs if the appeal is not taken, or is dismissed, or the judgment is affirmed. This would seem to offer some deterrent to the frivolous appeal, and seems fairer than to require a bond conditioned upon satisfaction of the judgment. In the typical case the bond presumably would cover only interest and costs, the "damage" from loss of the use of the money in the interval being in legal contemplation only the interest upon it.

Rule 62(b) is not in the federal rule. It preserves the existing statutory provision with respect to execution on default judgments. R.S.1954, Chap. 113, Secs. 5-7 (amended in 1959) [now 14 M.R.S.A. §§ 4701-4703].

Rule 62(d) follows Federal Rule 62(c) with respect to injunctions during the pendency of appeal. Compare Revised Rules of Court 18 (supersedeas of execution of peremptory writ or other process).

Rule 62(f) is designed to protect an attachment so long as the possibility remains that the plaintiff may obtain a judgment and for 60 days after such judgment. This conforms to R.S.1954, Chap. 112, Sec. 72, as amended in 1959 [now 14 M.R.S.A. § 4601]. This period had previously been 30 days.

Rule 62(g) is essentially the same as Federal Rule 62(g). It makes it clear that nothing in the rule limits any power which the Law Court would otherwise have to take action during the pendency of an appeal.

Rule 62(h) is the same as Federal Rule 62(h). It gives the court power to stay enforcement of a final judgment entered pursuant to Rule 54(b) on less than all of the claims in a single action until judgment on the remaining claims. The court may prescribe appropriate conditions for such stay. For instance, judgment on a claim might be stayed awaiting judgment on a counterclaim only if the plaintiff gave bond to satisfy the judgment. Omark Industries, Inc. v. Lubanko Tool Co., 266 F.2d 540 (2d Cir. 1959). Last reviewed and edited July 15, 2015 Includes amendment effective September 1, 2015