Beaupre v. Schlosberg
| Decision Date | 03 January 1933 |
| Citation | 163 A. 653 |
| Parties | BEAUPRE v. SCHLOSBERG. |
| Court | Maine Supreme Court |
Exceptions from Superior Court, Androscoggin County.
Action by Urban H. Beaupre against Louis H. Schlosberg, which was referred under rule of court, with right reserved to except as to questions of law. The referee found in favor of plaintiff, and defendant brings exceptions to the acceptance of the referee's report.
Exceptions sustained.
Argued before PATTANGALL, C. J., and DUNN, STURGIS, BARNES, and THAXTER, JJ.
Clifford & Clifford, of Lewiston, for plaintiff.
Robinson & Richardson, of Portland, for defendant.
This action of debt was referred under rule of court with the right reserved to both parties to except as to questions of law. It comes to this court on exceptions to the acceptance of the report of the referee.
The agreed statement of facts upon which this case was submitted shows that a judgment debtor who was not a party to this action having been arrested on an execution in favor of the plaintiff, was released on giving a bond, signed by himself as principal and by the defendant as a surety. The bond was in statutory form (Rev. St. 1030, c. 124, § 49) and contained the usual condition that the obligation should be void if the debtor, within six months thereafter, cited the creditor before two justices of the peace, submitted himself to examination, and obtained the oath prescribed in Revised Statutes, c. 124, § 55.
Within the prescribed period, on application of the debtor, a magistrate issued a citation to the plaintiff as creditor, which was in due form and under seal. Service was by copy setting forth the full text of the citation, including the teste, "Given under my hand and seal at Portland in said County this twenty-sixth day of January, 1931." There was, however, no seal upon the copy served nor indication therein, outside the copy of the teste, that the original citation bore a seal.
The creditor not appearing in answer to the citation, a disinterested magistrate was chosen and the certificate shows that the debtor was duly examined and the oath administered. The plaintiff contends that the disclosure proceedings were void by reason of the lack of a reproduction of a seal on the copy of the citation and the defendant was not thereby released from the obligations of his suretyship. The referee so ruled and found that the defendant was liable for the full amount of the execution.
It is well settled that a citation by a justice of the peace to a creditor in poor debtor proceedings must be issued under the hand and seal of the magistrate and substantially in the form prescribed by statute. R. S. c. 124, § 51. Although "now affixed to legal instruments principally to furnish evidence of their authenticity," so long as a seal is required to be affixed, it cannot be dispensed with. The citation is void if issued without a seal. Miller v. Wiseman, 125 Me. 4, 130 A. 504, 505.
We are of opinion, however, that a copy of the seal is not an essential part of the "attested copy" of the citation to be served upon the creditor as provided by R. S. c. 124, § 52. The general and universal rule seems to be that the seal of an original process need not be reproduced in the copy for service. We find no mandate here, nor conflict in underlying statutes elsewhere, which warrants the adoption of a different rule in poor debtor proceedings.
In Sietman v. Goeckner, 127 Ill. App. 67, a summons in due form and substance signed by the...
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Winter v. Casco Bank and Trust Co.
...The requirement of attestation is clear and explicit. It cannot be judicially excised from this statute. Cf. Beaupre v. Schlosberg, 131 Me. 407, 408, 163 A. 653 (1933). An attested copy is one which has been examined and compared with the original, with a certificate or memorandum of its co......
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