115 Me. 147 | Me. | 1916
Lead Opinion
This is an action of assumpsit brought to recover the sum of sixty dollars and eighty-two cents on an account annexed. The ad damnum is one hundred and twenty-five dollars. The plaintiff is a New York corporation, and the defendant a resident of Eastport. The writ was entered at the October Term, 1915, of the supreme judicial court for Washington county, at which term the defendant seasonably filed a plea in abatement alleging that the attorney who instituted the suit arid brought and entered the writ was at the time the Judge of the Eastport municipal court, and was prohibited by the statute creating that court from acting as attorney or counsel in any action, matter or thing within its jurisdiction. To this plea the plaintiff demurred. Upon hearing, the demurrer was overruled, the plea in abatement was adjudged good and the writ was ordered to be quashed. The case is before this court on plaintiff’s exceptions to this ruling of the presiding Justice.
Three questions present themselves.
First, was this action within the jurisdiction of the Eastport municipal court?
Second, was .the Judge of that court prohibited from bringing and maintaining it?
Third, if so, should the action itself have been abated?
On the first point we hold that the action was within the jurisdiction of the Eastport municipal court. This court was established .by chapter 219 of the Private and Special Laws of 1903, and under section 3 is given “exclusive original jurisdiction of all civil actions in which the debt or damage demanded do not exceed twenty dollars, and both parties, or one of the parties, or a person summoned in good faith and on probable grounds as trustee, reside in said city of Eastport,” etc. The phrase “debt or damage demanded” used in this connection is determined in all actions sounding in damages, as in assumpsit and tort, by the ad damnum in the writ, and not by computing the amount due on the specific claim or account annexed as set forth in the declaration. Estes v. White, 61 Maine, 22; Cole v. Hayes, 78 Maine, 539; Spaulding v. Yeaton, 82 Maine, 92; Smith v. Hunt, 91 Maine, 572.
Under section 4, the Eastport municipal court is given original jurisdiction, concurrent with the supreme judicial court, of all civil
Nor does it aid the plaintiff to say that under R. S., ch. 81, sec. 45, “Parties may plead and manage their own causes in court or
The precise issue to be settled is the scope and effect of this prohibiting clause. What interpretation shall be given it? The writ is in court in violation of law. That has been done which the statute says shall not be done. Under these circumstances we think the court is not bound to receive and retain the writ, and permit another attorney to carry on litigation thus improperly instituted. The prohibition must extend to both the actor and the act if the intended result is to be accomplished. Otherwise the purpose of the prohibition has been circumvented and the statute has been devitalized. A positive injunction has been weakened to a mild and impotent request.
In answer to the argument that the client should not suffer by the payment of costs because of the error of his attorney, we would quote the language of the court in Des Brisay v. Mackey, 12 N. B., 138: “We have not overlooked the hardship that by our construction of the act may result to the client from the employment of an unqualified attorney of whose neglect he may be entirely ignorant, but the hardship is not greater than happens in every case where proceedings are set aside in consequence of the mistake of an attorney in omitting to comply with some rule of practice. The inconvenience of the construction however is no reason for departing from the plain meaning of the words of an act.”
Authorities are not numerous. 6 Corpus Juris, p. 670, lays down this 'principle: “Proceedings in a suit by a person not entitled to practice are a nullity and the suit will he dismissed.” Among the cases cited to sustain this doctrine is Des Brisay v. Mackey, 12 N. B., 138, which is quite analagous to the case at bar. The statute involved in that case provided that no attorney who’
In Wallace v. Harrington, 34 N. S., 1, the plaintiff’s attorney had' failed to take out a yearly certificate as required by statute, but under other sections of the same statute the court held that the validity of the judgment thus obtained was not affected even as to costs. “The procedure for enforcing the provision of the act with reference to the certificate,” says the court, “seems to be by penalty and supervision under sections 31 and 34.” In the case at bar there are no independent provisions for the enforcement of the prohibition. The prohibition itself must carry by its own momentum if it is to be effective. See also Rader v. Snyder, 3 W. Va., 413; County of St. Louis v. Clay, 4 Mo., 562, and Robb v. Smith, 3 Scam. (Ill.) 45. All these decisions rest upon the peculiar wording of the statutes involved. So must our decision in the pending case. In our opinion this statutory prohibition was intended to be effective and to authorize the dismissal of a suit instituted and maintained in plain contravention of its terms.
Exceptions overruled.
Dissenting Opinion
dissenting. The facts involved in the case.have been fully stated in the majority opinion of the court and need not be restated.
The plaintiff’s writ, although admittedly in due and sufficient form, properly served, and duly entered in the supreme judicial court for Washington county, which court had complete jurisdiction of the parties and of the subject matter of the action, was quashed under a plea in abatement. The sole alleged reason for quashing the writ was that the plaintiff’s cause of action came within the concurrent jurisdiction of the said supreme court and the Eastport municipal court, and that Judge Pike, the Judge of 'the latter court, had acted as counsel in the preparation of the writ in violation of a provision in the charter of his court whereby the Judge thereof is prohibited to act as counsel in any action within its jurisdiction.
If the prohibition extends to the act as well as the actor, as the majority opinion holds, how shall that theory be applied in a case where such prohibited counsel acts with other counsel ? Would this writ have been subject to abatement just the same had Judge Pike acted only in conjunction with some other counsel in its preparation ? An affirmative answer would be in accord with the reasoning of the opinion. But it does not seem to us that a construction of the prohibition which leads to such results is justifiable.
We are of the opinion that the plaintiff’s writ should not have been quashed. It had been issued by the court itself, under its seal and teste, signed by its clerk, and served and returned to the court as directed. It was before the court as its own legal process, complete and sufficient in every particular, and should not have been quashed as a nullity simply because one forbidden to act as counsel in the case had in fact acted in the preparation of the writ. The plaintiff was innocent. It was unaware that its counsel, Judge Pike, was prohibited, if he was, to act for it. The plaintiff was without any fault in the premises. It was in fact represented in court, before the writ was quashed, by other counsel, C. B. & E. C. Don worth, who requested that the writ be adjudged good and the
It is therefore our opinion that the exceptions, should be sustained.