Pattee v. Lowe

35 Me. 121 | Me. | 1852

Appleton, J.

— The claim of the plaintiff, which is prosecuted in this case by his assignee, having been disallowed by the commissioners of insolvency on the estate of Asa Pattee, the defendant’s intestate, an appeal from such decision was claimed by the assignee, and the reasons for such appeal were duly filed. It is prescribed by R. S. c. 109, § 18, that “such appeal shall be claimed and notice thereof shall be given in writing at the probate office within twenty days after the return of the commissioners.” All which this section requires, is that the creditor appealing shall claim his appeal and give notice thereof at the probate office within a specified time. The same section makes provisions entirely different, when the appeal is taken by the administrator. It is objected in this case that no legal and sufficient notice was given. But the statute requires no special form, and were the technical subtleties of the common law to be required in probate proceedings, instead of facilitating, their introduction would tend to defeat the very objects of law. The notice given was in writing, was seasonably delivered to the register of probate at his office, and clearly states all the facts of which it is necessary the administrator should be informed, and substantially answers all the requirements of the statute. Being on file among the papers of the office, it is open to the inspection of all, who may be interested in its examination.

The plaintiff in interest, in ^ the prosecution of his appeal, sued out his writ within the time designated by law, but, (as it seems,) made a mistake in its return day. The action was entered at the term, to which it was his intention it should have been made returnable, and the defendant entered a general appearance. The cause came on for trial at the term next following its entry, and the general issue was pleaded together with a brief statement.

It has been settled by repeated decisions that, when there is no return day or an erroneous one, advantage of such error can only be taken by motion or plea in abatement, and that if the party objecting neglect to make his motion or file his plea within the time fixed by the rules of Court for that purpose, and pleads the general issue, he will be deemed to have waived such defect, and the Court upon motion will allow the writ to be amended. Ames v. Weston, 16 Maine, 266; Barker v. Norton, 17 Maine, 416. Had the plaintiff therefore not altered his writ before its entry and had the defendant omitted all exceptions to the mistake apparent on its face, it is obvious that the Court would have authorized such an amendment, as was in fact made without its permission. Although the amendment was unauthorized, the defendant might waive all objections for such. cause. He was under no obligations to act adversely to the correction of a mistake. If the defendant had intended to rely on the error existing originally in the writ, and by means thereof to defeat the plaintiff’s suits, there was but one course for him to pursue. He should have treated the alteration- as a nullity, and by motion or plea in abatement have called the atténtion of the Court to the writ in its original form; for as no leave had been granted to amend, the writ should have been deemed as if unaltered. Maine Bank v. Harvey, 21 Maine, 38; Childs v. Ham, 23 Maine, 74.

Instead however of taking any exception to the writ or to its unauthorized alteration by the plaintiff, the defendant entered a general appearance, and when subsequently the cause came on for trial, pleaded the general issue and filed his brief statement, alleging that the writ had not been sued out till after the expiration of the three months allowed by statute in which to bring the suit. The defendant now seeks to accomplish by means of the general issue and a brief statement, what can legally be done only by motion or plea in abatement. Having neglected at the proper time, and in the proper mode, to take advantage of defects, which, unless objected to at an early stage of the proceedings, the Court would have allowed to be amended, the defendant cannot now be permitted to revive lost and abandoned technicalities by brief statements or in any other way. The writ is to be considered in law, as it is in fact, the identical writ, which the attorney made with intent to prosecute the appeal taken in this case. The rights of parties have relation back to the time when the action was commenced. No bar to the plaintiff ’s rights had accrued from lapse of time. Miller v. Watson, 6 Wend. 506; Heath v. Whidden, 29 Maine, 108.

It is the opinion of the Court, that the action can be maintained. The cause is consequently, by the agreement of the parties, to stand for trial.

Shepley, C. J., and Howard and Rice, J. J., concurred.