66 Me. 249 | Me. | 1876
This is a real action commenced by a capias writ, which was served by the arrest of the defendant.
At the return term, the defendant’s attorney entered his appearance upon the docket “to objectand on the tenth day of the term, filed a motion to dismiss the action, “because being a real action, the defendant was not liable to arrest, and yet said action was commenced by a capias, and the only service made, was by arresting the body of the defendant, and by taking from him a bail bond.”
Under the statute of 1821, c. 59, as well as previous to it, a party was not limited to any particular form of writ in a real action ; and a capias might legally have been used. Maine Charity School v. Dinsmore, 20 Maine, 278.
In the revision of 1841, a change was made in the language used, c. 145, § 3, providing that writs of entry “shall be served, not only in the usual manner by attachment and summons, or by copy of the writ, upon the defendant; but if the defendant be not in possession,” by a copy upon the tenant, &c., thus recognizing the fact that the form of capias if lawful, was not often resorted to, and requiring in future the service upon the defendant to be by an attachment and summons, or by copy.
In the revisions of 1857 and 1871, c. 104, § 1, still more definite and peremptory language is used. The provision here is, that writs of entry “shall be served by attachment and summons, or copy of the writ, on the defendant;” but if he is not in possession a further service is to be made upon the tenant. The terms here used are so explicit as to leave no room for construction or doubt. So far as the defendant is concerned, the service must be in one of two ways; and as arrest is not one of them, that is necessarily excluded. As the service by arrest is illegal, a writ which commands it must also be illegal. “A writ which commands an unlawful act is bad in form.” Thayer v. Comstock, 39 Maine, 140.
But it is claimed that this is not the proper construction of the
R. S., c. 81, § 2, is also relied upon. But this proves too much for the plaintiff’s case; for it provides that all writs may be framed so as to take the body. This would override even the exception contained in c. 113, § 1, which is contrary to the universal practice, and in violation of a well established rule for the construction of statutes. Applying this rule as above stated, and these three statutes will each remain in full force, and have the meaning and effect which the legislature intended, that all writs may be so framed as to run against the body, except in those cases where the law especially applicable, otherwise provides. In real actions the law applicable, as we have seen, provides that the service shall not be by arrest, and by necessary inference that the writ should not run against the body. Hence in this case the writ is illegal, and tbe service is defective.
The writ is in the alternative, directing the officer to attach property, and for want thereof to take the body. It might therefore have been legally served notwithstanding the illegal order found in it. This order is not necessary to the vitality of the writ; it is an unnecessary as well as an illegal addition to it, and may therefore be stricken out. Therefore the writ may be amended. Matthews v. Blossom, 15 Maine, 400.
The objection to the service is not that there was a total failure in that respect, but that it was defective and even illegal. There is no pretense that it was not by a competent officer, or that the defendant did not have due notice of the suit. In such a case the defect i's one which the defendant might waive, or which would avail him only when the objection is made in the proper manner, and at the proper time. Cook v. Lothrop & als., 18 Maine, 260. Shaw v. Usher, 41 Maine, 102. Maine Bank v. Hervey, 21 Maine, 38.
-By the sixth rule of this court, “pleas or motions in abatement, as to the jurisdiction in actions originally brought in this court, must be filed within two days after the entry of the action,” &e„ As the defect in this case is one that should and could be taken advantage of only in abatement, it comes within the express terms of the rule; and therefore, the motion was too late. Nickerson v. Nickerson, 36 Maine, 417. Shorey v. Hussey, 32 Maine, 579. Webb v. Goddard, 46 Maine, 505. Stetson v. Corinna, 44 Maine, 29.
Nor does it change the effect by making the appearance special. If it is done solely to object to the defective service as in this case, still, if the time allowed for filing the motion is permitted to pass by without doing so, it is as much a waiver, as though the appearance had been general. It becomes a neglect to do that, without which the objection becomes of no avail, as the following cases clearly show. Snell v. Snell, 40 Maine, 307. Mitchell v. Union L. Ins. Co., 45 Maine, 104. Mace v. Woodward, 38 Maine, 426. This last case is cited and relied upon by the defendant’s counsel. It is true that after holding that the motion must be overruled as
But these cases are in no respect inconsistent with those before cited, or with the rule of court. The rule applies to matters which can only avail in abatement. The cases relied upon, refer to such deficiencies as are vital to the action, and may be shown under any issue, or in any stage of the proceedings. If the court has jurisdiction of the subject matter and the parties, any defect in the process or service may be waived or amended ; and such defects must be taken advantage of, if at all, under the rule and in accordance with its provisions. But, where the court has no jurisdiction of the subject matter or of the parties or there is no process or service, such defect cannot bo amended or waived; and such deficiency will defeat the action whenever it may come to the knowledge of the court.
This distinction is clearly made in Webb v. Goddard, before