Brown v. Mosher

• Decision Date: 08 November 1890
• Citation: 21 A. 835,83 Me. 111
• Parties: BROWN v. MOSHER.
• Court: Maine Supreme Court

21 A. 835

83 Me. 111

BROWN

v. MOSHER.

Supreme Judicial Court of Maine.

Nov. 8, 1890.

(Official.)

Report from supreme judicial court, Somerset county.

This was an action of replevin. It was admitted that the plaintiff was the owner of the chattels; that they were not exempt from attachment; and that the defendant, at the time of the taking, was a deputy of the sheriff for Somerset county authorized to serve civil process.

The defendant justified the taking by virtue of a warrant of distress, issued by the county commissioners of Somerset county against the inhabitants of Detroit, upon which he had seized the property to satisfy the warrant.

It appeared that the county commissioners had laid out a way, called "Peltoma Bridge," across the Sebasticook river between Pittsfield and Detroit, and, it not having been opened within two years, they caused it to be done, and the bridge to be built, by an agent appointed by them. The proceedings of the commissioners ended in issuing a warrant of distress against Detroit to enforce their judgment rendered thereon, and to collect the proportional part of the cost of building that portion of the bridge lying within the limits of the town.

The plaintiff, an inhabitant of Detroit, contended that the warrant of distress was void, and opening of the way invalid, for the reasons which appear in the opinion of the court.

S. S. Hackett, for plaintiff.

S. C. Strout, H. W. Gage, U. A. Strout, and J. W. Manson, for defendant.

VIRGIN, J. This is an action of replevin. The defendant sets up a justification of the taking as a deputy-sheriff, by virtue of a warrant of distress, issued on an alleged judgment rendered by the court of county commissioners, in favor of one Connor, against "the inhabitants of Detroit," of which this plaintiff is one.

The plaintiff challenges the justification under the warrant, for the alleged reason that it does not disclose the jurisdiction of the commissioners.

A warrant of distress in due form, issued by a court of county commissioners, like the final process of other inferior tribunals, affords per se full protection to the officer serving it, whenever it appears on its face that the court had jurisdiction of the subject-matter, and no want of authority in other respects appears thereon. Gurney v. Tufts, 37 Me. 130, 133; Gray v. Kimball, 42 Me. 299, 307; No well v. Tripp, 61 Me. 426; Elsemore v. Longfellow, 76 Me. 128; Winchester v. Everett, 80 Me. 535, 537, 15 Atl. Rep. 596; Chase v. Ingalls, 97 Mass. 529.

The legislature has prescribed the form of several mesne and final processes, civil and criminal, (St. 1821, c.63; Rev. St.c.27,) but a warrant of distress is not found among them. Commissioners have general authority to enforce, by such warrants, judgments legally rendered by them, (Rev. St. c. 78, § 18,) and express authority to issue them against unsuccessful petitioners, under Id. c. 18, § 3; and specific power, by such process, to collect from a town the regularly allowed amount of expenditures and expenses of a duly-appointed agent in opening and making passable a highway which the town itself was bound by law, but neglected, to build, (Id. c. 18, § 37.)

The cases in which it is issuable are few; and if issued in cases not authorized, it is invalid. The one in hand discloses on its face no intimation of the subject-matter of the judgment on which it was issued, and which it was intended to enforce. For aught that appears in the warrant itself, the judgment may have been rendered upon a special contract, a tort, or some other cause entirely foreign to the jurisdiction of such a court. Under the rule of law above mentioned, therefore, as the warrant on its face fails to show that the commissioners had jurisdiction of the subject-matter of the judgment, it alone cannot be held to justify the defendant's taking of the plaintiff's property.

If, however, the commissioners had jurisdiction in fact, and the record of the judgment, on which it was issued, so shows, then the defendant was justified, unless he transcended his authority in executing it, of which there is no suggestion.

The judgment also is attacked upon the ground of want of jurisdiction,—that the hearing upon the petition for the appointment of the agent, whose account of expenditures and expenses is the subject-matter of the judgment, should have been had at the shire town of Skowhegan, and not in Pittsfield, one of the towns in which a part of the located bridge is situated.

The petition was in due form, and wan duly filed at the "annual session" o. March, 1888, in Skowhegan; whereupon legal notice thereon, so far, at least, as time is concerned, was duly ordered and subsequently served. Both towns appeared by their respective counsel, when the town of Detroit...