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Spack v. Puorro
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MAINE SUPREME JUDICIAL COURTReporter of Decisions
Decision: 1997 ME 13
Docket: PIS-96-281
Submitted on briefs December 20, 1996
Decided January 23, 1997
PANEL: WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ,
JJ.
FOREST SPACK et al.
v.
MICHAEL PUORRO
WATHEN, C.J.
[¶1] Defendant Michael Puorro appeals from an order entered in the
Superior Court (Piscataquis County, Mead J.) denying his motion for relief
from an attachment order. Having failed to file a timely appeal from the
order granting the attachment, defendant moved for relief pursuant to M.R.
Civ. P. 60(b)(4). On the merits, he argues that the attachment order should
have been declared void due to improper service of process. Because of the
peculiar procedural posture of this case, we have no occasion to address the
merits and must dismiss defendant's appeal.
[¶2] A prejudgment attachment order is not a proper subject of a
motion seeking relief from a judgment. "On motion and upon such terms as
are just, the court may relieve a party or the party's legal representative
from a final judgment, order, or proceeding..." M.R. Civ. P. 60(b) (emphasis
added). Such an attachment order is not a final judgment, but rather is a"provisional remedy ... temporary in its nature, to await the final judgment of
the court touching the action," McInnes v. McKay, 127 Me. 110, 115 (1928).
"[T]o relax the requirement of finality in the context of Rule 60(b)
proceedings would set at naught the oft-reiterated principle that such
proceedings are 'not a substitute for appeal'." Brengelmann v. Land
Resources, Etc., 393 A.2d 174, 176 n.3 (Me. 1978) (quoting 11 Wright &
Miller, Federal Practice & Procedure § 2851, at 142 n.19).
[¶3] Defendant is also precluded from appealing directly from the
attachment order. Although interlocutory, an order granting an attachment
is reviewable on direct appeal by virtue of the collateral order exception to
the final judgment rule. Foley v. Jacques, 627 A.2d 1008, 1009 (Me. 1993).
In the present case, however, defendant failed to file an appeal within the
thirty (30) day appeal period.{1}
The entry is:
Appeal dismissed.
Attorney for plaintiffs:
Elton A. Burkey, Esq.
P O Box 1437
Greenville, ME 04441
Attorney for defendant:
Patrick S. Bedard, Esq.
P O Box 366
Eliot, ME 04903
FOOTNOTES******************************** {1} The substance of defendant's
appeal, insufficiency of service of process, was properly asserted in a
motion to dismiss pursuant to M.R. Civ. P. 12(b)(5). The Superior Court's
denial of that motion, however, is not immediately appealable. Rosenbery
v. Taylor, No. 7834 (Me. Nov. 21, 1996). In ruling on defendant's motions,
the court granted leave to defendant to move to set aside the attachment.
Defendant failed to file such a motion.
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