Dodge v. Hunter

85 Me. 121 | Me. | 1892

Virgin, J.

An action on the note in suit would be barred on December 20, 1890, unless commenced prior to that date.

The writ wfas made and dated on December 19, 1890, and real estate attached, but no personal service on the defendant made.

The writ was made returnable at the June term, 1891, instead of at "one of the next two terms” after date, viz., February or April, as required by E. S., c. 77, § § 68, and 69. Blake v. Wing, 77 Maine, 170.

On or about February 7, before personal service on the defendant, the plaintiff’s attorney, on discovering the erroneous return day, changed it to the April term ; and thereupon a new attachment was made and final service subsequently completed.

The action was entered at the April term when the defendant appeared generally by attorney. On the twelfth day of the June term, the defendant pleaded the general issue, filed an offer to be defaulted on the first count (account annexed) and a brief statement of the statute of limitations to the count on the note.

The court below held that the judgment should include the amount due on the note.

The defendant now renews his contention that the date of the writ should be changed to February 7, 1891, when the return day was changed and the new attachment made. Such is not our view.

The time of actually making a writ with an intention of service is the time when an "action is commenced” within the meaning of the statute of limitations. E. S., c. 82, § 82. Johnson v. Farwell, 7 Maine, 370. There can be no doubt that when this writ was made and dated on December 19, 1890, it was with the intention of service and for the purpose of preventing the intervention of the limitation bar. The new attachment did not necessitate a change of date of the writ, for more than one attachment of real or personal property may be made on it any time before personal service on the defendant. It could not be said to have performed its office until service is completed; for until then the defendant, does not become a party and no action is really pending. Clendenven v. Allen, 4 N. H. 386; Bray v. Libby, 71 Maine, 276, 279.

Neither did a change of return day necessitate a change of date of the writ; for the new return day was a legal one and in full compliance with the statute. If the same statute governed the Superior Court as does this, and the writ had been made returnable at the next term after reasonable time for service, but failed of service and the return day was changed and then served, the date of the writ would then have been erroneous; and the writ on its face would have shown that it was returnable after an intervening term at which it should have been returnable and hence would have been abatable. McAlpine v. Smith, 68 Maine, 423.

But in the case at bar no such error appears. The date was right. The return day was erroneous, and changed to the proper one, was entered at the proper time, was answered to generally and at the subsequent term the general issue was pleaded.

In the absence of any suggestion of intended wrong, or of any injury to the defendant save that his promissory note will not be barred, we think by his omission to make the technical objection at the time prescribed by the rule governing such matters, he must be considered as having waived the technicality which he now indirectly sets up. In fact the point is res judicata. Pattee v. Low, 35 Maine, 121, is on all fours with this case. See also Bray v. Libby, 71 Maine, 276, 280.

Exceptions overruled.

Peters, C. J., Walton, Emery, Hasicell and Whitehouse', JJ., concurred.