Boynton v. Fly

12 Me. 17 | Me. | 1835

Weston C. J.

By chapter 76 of the revised statutes, ■§> 8, it is provided, that all civil actions, wherein the debt or damage does not exceed twenty dollars, and wherein the title of real estate is not in question, and specially pleaded by the defendant, shall and may be heard, tried, adjudged and determined, by any Justice ol the Peace within his county. General jurisdiction to this extent having been thus given, the same section prescribes what process the justice shall issue, where it may be served, and how long before the time appointed for trial. The process is to be by summons, capias or attachment. The forms of these writs are prescribed in another statute. The service is to be made at least seven days before trial. Suppose the writ varies substantially from the form provided; or' suppose it be served five days, instead of seven, before trial, yet if the justice renders judgment thereon, having jurisdiction, it will be a subsisting judgment, which may be enforced until reversed; which it may be by a writ of error. So if the writ is directed to an officer in another county, and is by him served, although not warranted by law, and the judgment rendered thereon may be reversable upon error, yet it remains in force, until so reversed. By law all personal or transitory actions, are to be brought in the county, where one of the parties lives, if both plaintiff and defendant are inhabitants of this State; and if otherwise brought, the writ shall abate, and the defendant be allowed double costs. There is no want of jurisdiction in the court; but it is matter of positive regulation. In the case before us the justice, having jurisdiction, the judgment, even if erroneous, remains in force, until reversed.

By the statute of 1824, ch. 275, a justice was authorized to issue a process of foreign attachment, when the amount demanded is not less than five, nor more than twenty dollars, provided the plaintiff and the supposed trustee live in the same county, where the justice has jurisdiction. By a subsequent statute of 1825, ch. 288, so much of the former as requires the plaintiff and supposed trustee both to reside in the county, where the justice has jurisdiction, is repealed. The trustee lived in that county, and was duly summoned. The power of a justice in all actions of assumpsit, is still further extended by the statute of 1827, ch. 359, where two or more defendants live in different counties, in which case the action may be brought in either county, and the process of the justice is to run into every county, where a defendant lives. Although the original debtor, in the judgment under consideration, was the principal defendant, yet the trustee was also a defendant, and called upon to answer averments, upon which he was finally charged. Here then is a case, within the provisions of the last statute, and justified under it. But it is enough for the defendant, that he is protected by a subsisting judgment, in a case of foreign attachment, within the jurisdiction of a justice, which is unreversed and in full force.

Judgment affirmed.