Patten v. Starrett

20 Me. 145 | Me. | 1841

The opinion of the Court was by

Whitman C. J.

In this case a bill of exceptions was taken and allowed, after a default had been voluntarily and unconditionally suffered to be entered in the District Court. This was an irregularity. The statute provides, that either party, aggrieved at any order, &c. of the District Court, may take exceptions thereto, and proceed therewith to the Supreme Judicial Court for a revision of the decision objected- to. But this presupposes, that the party, so proceeding, has done no act, whereby he must, necessarily, be considered as having consented, that judgment should be entered up against him. A default, voluntarily submitted to, by a defendant, amounts, virtually, to a consent, that judgment should be entered up against him. This action therefore must be dismissed from the docket of this Court; and the District Court will proceed as may be deemed proper in the case.

•As the parties, however, have furnished us with arguments in writing on the points intended to be raised, and as it may be of some practical importance that they should be de'cided, we have considered the matter. In the first place the plea in abatement, setting forth that no service had been made on one of the defendants, named in the writ, without alleging' that he was a joint co-promissor or obligor, was bad. Without such fact it is of no importance, to the defendant appearing, whether the other .person named be summoned or not. The replication which was filed was wholly unnecessary, and irregular ; on demurrer and joinder to which the Court did right in going back to the first fault, and adjudging the first plea bad.

Leave was granted, it seems, by the Court to the plaintiff to amend by altering the description of the defendant not summoned, and causing him to be summoned, and be made-a co-defendant. This amendment and procedure have been and still are considered as a subject of controversy, as-we learn from the arguments.

Our statute provides, that the. plaintiff, in an action upon a contract, may be allowed to amend by the insertion of an additional defendant, and summoning him, &c. The question is whether any thing 'more had been done, in this instance, than was within the purview of this statute. The individual, named in the writ, as a co-promissor, was wrongly described, as to his place of abode, so that the officer in serving the writ, was obliged to return non est inventus, as to him. He was, then, to every intent and purpose, as if he had not been named in it. A new description of him was, in effect, inserting a new defendant. It was inserting one that could, in lieu of one that could not, be found. This seems clearly to be within the mischief, intended by the statute to be remedied ; and we are satisfied, that the procedure was well warranted by its provisions.