Densmore v. Hall

• Decision Date: 09 November 1912
• Citation: Densmore v. Hall, 109 Me. 438, 84 A. 983 (Me. 1912)
• Parties: DENSMORE v. HALL.
• Court: Maine Supreme Court

84 A. 983

109 Me. 438

DENSMORE

v. HALL.

Supreme Judicial Court of Maine.

Nov. 9, 1912.

Exceptions from Supreme Judicial Court, Sagadahoc County, at Law.

Action by Nancy N. Densmore against William T. Hall.Plaintiff was nonsuited, and brings exceptions.Exceptions overruled.

Argued before WHITEHOUSE, C. J., and SAVAGE, CORNISH, KING, and HALEY, JJ.

Benedict F. Maher and Samuel Titcomb, both of Augusta, for plaintiff.

William T. Hall, Jr., of Richmond, for defendant.

KING, J.On the 28th of July, 1910, an action was commenced on a promissory note, which would otherwise have been barred by the six-year limitation on the 1st day of August following.The writ was made returnable at the term of the Supreme Judicial Court for Sagadahoc county to be held on the fourth Tuesday of December, 1910.It should have been returnable at the August term of said court, 1910.It was entered at said December term, and on the second day of the term the defendant filed a motion to dismiss the action because it was made so returnable.On the sixth day of the term, which was the 2d day of January, 1911, the plaintiff demurred to the motion to dismiss, which demurrer on that day was overruled, and the motion to dismiss sustained.Exceptions to that ruling were filed and allowed, and at the June term of the law court, 1911, the exceptions were overruled for want of prosecution.This action, declaring upon the same note, was commenced by writ dated June 29, 1911, entered at the August term of said court, 1911, and continued to the December term, 1911, when and where it was heard upon the defendant's plea of the statute of limitations, and a nonsuit ordered.The case is now before the law court on exceptions to that ruling.

The plaintiff's answer to the plea of the statute of limitations was that the action was authorized by section 94, c. 83, R. S. which is as follows: "When a writ fails of sufficient service or return by unavoidable accident, or default, or negligence of the officer to whom it was delivered or directed, or is abated, or the action is otherwise defeated for any matter of form, or by the death of either party, or if a judgment for the plaintiff is reversed on a writ of error, the plaintiff may commence a new action on the same demand within six months after the abatement or determination of the original suit, or reversal of the judgment; and if he dies and the cause of action survives, his executor or administrator may commence such new action within six months."

The original action was properly dismissed under the motion.McAlpine v. Smith, 68 Me. 423, is an authority directly in point, in which it is held that a writ returnable after an intervening term is voidable, and may be abated or dismissed on motion.The dismissal of the writ, under the motion, is therefore equivalent to its abatement.The present action was commenced within six months after the dismissal of the original writ; in fact, it was commenced within six months after the ruling at nisi prius, which was on January 2, 1911.

The real and only question, therefore, to be determined here, is whether the provisions of section 94, c. 83, are applicable to a case like this, where the original writ is abated because returnable after an intervening term contrary to law.We think that question must be answered in the negative.

It, is claimed in behalf of the plaintiff that the original action was abated because of a defect in a "matter of form," and hence the saving proviso of the statute applies.It may not be easy to determine whether the fact that the writ was made returnable contrary to law is a defect in form.Defects in form are amendable, but clearly this writ was not amendable at the time it was dismissed.The term to which it should have been made returnable had passed.Its date could not have been changed, because that was not erroneous.It is difficult to point out wherein the writ was defective in matter of form.Perhaps it should be regarded as an unlawful writ, rather than one defective for informalities.

But, in our view of the case, it is not necessary to determine if the infirmity of the original writ, on account of which it was dismissed, was a defect in a matter of form.We think it was not a "writ," within the meaning of that word as used in the proviso of the statute.The statute of limitations is founded on a presumption that a debt has been paid or otherwise discharged after the lapse of a certain time, during which the creditor has made no attempt to enforce it or revive it.But that presumption does not arise if within the time limited the creditor resorted to legal proceedings to recover the debt; and the saving proviso of the statute now under consideration grew out of this obvious consideration.It was predicated on the fact that the creditor had within the time limited in good faith commenced an action on the debt—not an action, however, so perfect that it might not be abated or defeated for some defect in matter of form, but at least an action adapted to enforce the cause of action.The proviso was to protect a diligent creditor from losing his cause of action on account of the abatement of his timely and appropriate action because of some matter not affecting its merits, but...