101 Me. 410 | Me. | 1906
This action was commenced by a trustee writ issued by the Municipal Court of Dover in Piscataquis County, dated September 22, 1904. On the return day, the 3rd Tuesday of November, 1904, the principal defendant filed a plea in abatement to the writ and declaration alleging therein that “at the time of the purchase and service of the said writ, and long before and ever since, he, the said defendant, William Newman, resided in the town of Dexter in Penobscot County, and not in Piscataquis County where said writ is returnable. That said Maine Central Railroad Company alleged trustee in said writ fe a domestic corporation created and existing under the laws of Maine, has its established and usual place of business in Cumberland County (and not in Foxcroft in Piscataquis County as alleged) where it held its last annual'meeting and usually holds its meetings, and that at the time of the purchase and service of said writ, and long before and ever since, there has existed and. still exists in Portland in said Cumberland County, a Municipal Court for said Portland with a jurisdiction sufficient in this case. Wherefore said plaintiff, if he had any good cause of action against the said defendant and against the Maine Central Railroad Company as alleged trustee therein, ought to have commenced the same before such Municipal Court of Portland and not before this Dover Municipal Court.” To this plea the defendant filed a demurrer “ because insufficient in law ” which was sustained by the court.
Also on the return day of the writ the trustee filed its disclosure making general denial that it had' in its hands and possession goods, effects or credits of the said principal defendant, and on its examination in answer to interrogatories further disclosed that “The said Maine Central Railroad Company is and was at the time of the service of the writ in this case upon it a domestic corporation being created and existing under the laws of said State of Maine, with its business office at Portland in the County of Cumberland where its meetings are held and where its last annual meeting was held, and
The case comes before the Law Court on the exceptions of the principal defendant, the trustee not having filed exceptions. The questions raised by the exceptions are, first, whether the plea in abatement is sufficient in law, second, whether the want of jurisdiction is available to the trustee by disclosure.
Pleas in abatement being dilatory pleas are required to be technically exact so as to preclude all presumption or argument against the party pleading. Bellamy v. Oliver, 65 Maine, 108; Getchell v. Boyd, 44 Maine, 482; Tweed v. Libbey, 37 Maine, 49; Adams v. Hodsdon, 33 Maine, 225; Burnham v. Howard, 31 Maine, 569; Biddeford Savings Bank v. Mosher, 79 Maine, 242.
In the trustee process jurisdiction depends upon the residence of the trustee at the time the action is brought. R. S., chapter 88, section 5. The question of jurisdiction in such proceedings, as in other civil actions, is to be raised by pleas in abatement. When an action was brought in a county in which it was alleged the trustee did not reside at the time of service, a plea in abatement was held bad on
The plea in this case made on the return day of the writ states the residence of the trustee in the language quoted in its second paragraph. This describes with precision the defendant’s legal residence in the present tense, and thus its application is to the instrument in which it is made; and it neither directly nor by necessary inference relates to the time when the action was brought. It does not negative the residence of the trustee in Piscataquis County as alleged in the writ. The demurrer to the plea in abatement should be sustained.
The trustee process is created by statute. Hanson v. Butler, 48 Maine, 81; Jarvis v. Mitchell & trustee, 99 Mass. 530. While it is regulated by statutory requirements its procedure must conform to the rules of civil pleading. The trustee in relation to the plaintiff is an adverse party in the suit and is entitled to make his defense, as the principal defendant may, either upon issues of law or of fact; Boynton v. Fly, 12 Maine, 17 ; Dennison v. Benner, 36 Maine, 227. He may plead in abatement want of jurisdiction; Greenwood v. Fales, 6 Maine, 405 ; Scudder et al. v. Davis & trustee, 33 Maine, 575; Mansur v. Coffin, 54 Maine, 314; Thayer v. Bay & trustees, 34 Mass. 166; Hooper v. Jellison & trustees, 39 Mass. 250 ; Lewis v. Denney & trustees, 58 Mass. 588. Or in effect by his disclosure he may plead in bar to the maintenance of the action against him. There is nothing in the nature of the process which authorizes a departure from technical pleading if the trustee raises for himself an issue of law. The disclosure is the statutory answer which presents the issues of fact upon which the liability of the trustee depends in reference to the business relations with the principal defendant; R. S., chapter 88, section 14; and upon them the court can properly decide only whether the alleged trustee had goods, effects or credits of the principal in his possession of such nature and under such conditions as made them available to the plaintiff.
In this case the trustee seeks to incorporate in his disclosure matters in the nature of a plea in abatement affecting the jurisdiction of the court. This is not admissible unless perhaps where the defect is
But even if admissible as part of the disclosure the matters alleged in the nature of a plea in abatement are insufficient, because they do not show where the trustee had its established place of business at the date of the writ.
Exceptions overruled.