Buswell v. Eaton

• Decision Date: 06 August 1884
• Citation: 76 Me. 392
• Parties: TURNER BUSWELL v. JANE EATON and others.
• Court: Maine Supreme Court

76 Me. 392

TURNER BUSWELL v. JANE EATON and others.

Supreme Judicial Court of Maine.

August 6, 1884

ON REPORT.

Writ of entry to recover an undivided half of lot No. 58 in Solon. The plea was joint nul disseizen, with brief statement.

The opinion states the material facts.

The following is a copy of item four of Moses Eaton's will referred to in the opinion:

" Item 4th. I give, bequeath and devise to Samuel Eaton and Jona. Eaton, lots 58 and 112 in the north half of said Solon, on condition that they pay or cause to be paid, a certain note on which I am holden to Elisha Coolidge of Solon for about $160, also a note of about $180 to Samuel E Morrill of Athens, also a note signed by said Samuel and Jonathan to me for $100, and in case they do not pay said notes, then I bequeath and devise said lots to Moses Eaton 2d, my nephew, on condition that he pay said notes."

In their argument at law court plaintiff's counsel asked leave to amend by striking out the surplusage if the action should have been in the name of the plaintiff individually.

D. D. Stewart and Turner Buswell, for the plaintiff.

Baker, Baker and Cornish, for the defendants.

PETERS C. J.

The plaintiff was defendant in an action as administrator upon his father's estate, and recovered judgment in the action for his costs. Instead of issuing an execution to him for costs in his own name, the judgment and execution were made running to him in his representative capacity. The execution was levied upon the estate demanded in the present action. The present is a real action in the name of the plaintiff as such administrator. The fact is that the judgment, levy and action belong to the plaintiff, and more properly should have been in his individual name. The estate of his father has no interest in them. But the accompanying designation or description of person is harmful to no one, and, if not removed by amendment, may be considered as unessential parts of the proceedings, and may be rejected as merely surplusage. The maxim utile per inutile non vitiatur applies. Useless allegations, separable from those that are useful may be rejected as surplusage. Gilmore v. Mathews, 67 Me. 517. Or they may be stricken out. Bean v. Ayers, Id. 482. The redundant matter serves to explain to us at least the foundation upon which the judgment rests. The writ in the present action would be more symmetrical, if shorn of the irrelevant matter indicated...