Estabrook v. Ford Motor Co.
| Decision Date | 23 January 1940 |
| Parties | ESTABROOK v. FORD MOTOR CO. |
| Court | Maine Supreme Court |
[Copyrighted material omitted.]
Exceptions from Superior Court, Penobscot County.
Action by Curtis G. Estabrook against the Ford Motor Company to recover damages for negligence. Judgment of dismissal, and plaintiff brings exceptions.
Exceptions overruled.
Argued before DUNN, C. J., and STURGIS, BARNES, THAXTER, HUDSON, and MANSER, JJ.
Stern & Stern, of Bangor, for plaintiff.
James E. Mitchell, of Bangor, for defendant.
This is an action in which the plaintiff seeks to recover damages for the alleged negligence of the defendant. The defendant is described in the writ as "Ford Motor Company, of Detroit, Michigan, a corporation duly existing and having a place of business and doing business within this state, at Bangor, in said County of Penobscot." It is apparent from the pleadings and is conceded in argument that the defendant is to be treated as a foreign corporation doing business within this state.
In accordance with the provisions of Rev. Stat. 1930, Ch. 95, Sec. 19, service on such a corporation shall be made by leaving an attested copy of the writ, "with the president, clerk, cashier, treasurer, agent, director or attorney of such company or corporation, or by leaving such copy at the office or place of business of such company or corporation within this state; and in each case, it shall be so served fourteen days at least before the return day thereof."
The officer's return of service of the writ reads as follows:
The defendant through its attorney appeared specially for the sole purpose of questioning the jurisdiction of the court, and on the second day of the return term filed a motion praying that the court examine into the grounds of jurisdiction, and stay any further proceedings for want of proper and sufficient service and for lack of jurisdiction in the court over the cause. The grounds on which such motion is based are that the purported service was insufficient and defective as a matter of law, and what seems to be particularly relied on is that the Webber Motor Company, on which service purports to have been made, was not the agent of the Ford Motor Company.
To this pleading the plaintiff demurred; the court overruled the demurrer, and dismissed the case for want of service. A careful analysis of the reasoning of the presiding justice will clarify the jurisdictional problem here involved.
A plea in abatement attacks the writ and not the declaration. It does not reach the merits of the case, but rather sets forth a reason why the defendant is not required to plead to the merits. Because of this it is not favored by the court, and it is held that there must be an exact compliance with every requirement of statute or rule, whether of form or substance, or the plea will be overruled on a demurrer. Burnham v. Howard, 31 Me. 569; Getchell v. Boyd, 44 Me. 482.
The so called motion of the defendant in this case, though filed within the time required by the rule, was insufficient as a plea in abatement because it did not, as pointed out by the presiding justice, conclude with "praying judgment of the writ." Hazzard v. Haskell, 27 Me. 549. Assuming that it sought to bring to the attention of the court a defect in the service of the writ based on the claim that the Webber Motor Company was not the agent of the Ford Motor Company, it was ineffectual because a motion to dismiss reaches only a defect which is apparent on the face of the record. Chamberlain v. Lake, 36 Me. 388; Littlefield v. Maine Central Railroad Company, 104 Me. 126, 71 A. 657; Continental Jewelry Co. v. Minsky, 119 Me. 475, 111 A. 801.
The presiding justice, though holding that the motion filed by the defendant was of no avail to bring before the court the question of fact which the defendant sought to raise, ruled that it did have "office to call the court's attention to the record." And the court held that the officer's return of service was defective on its face, because it did not appear in the return that the Webber Motor Company was a corporation, and if it was a corporation, it did not appear that it was a domestic corporation.
Two questions are therefore before us for decision. First: Was the officer's return as held by the presiding justice defective on its face? Second: If it was, did the procedure followed by the defendant constitute a waiver of such defect?
The defect in the return of service is pointed out by the presiding justice in the following language:
As an alternative the plaintiff claims that the officer's return is sufficient because it shows that, in accordance with the provisions of Rev.Stat.1930, Ch. 95, Sec. 19, the copy was left "at the office or place of business of" the defendant "within this state." But the officer's return does not so recite. It states specifically that the copy was left with the Webber Motor Company by delivery of it to Alburney E. Webber, the treasurer. The fact that the Webber Motor Company may have been located at the office and place of business of the Ford Motor Company is immaterial.
The ruling of the presiding justice, that the service as shown by the officer's return was defective, was correct. Did the defendant waive such defective service? The answer to this question brings us to a consideration of Rule 5 of the Supreme Judicial and Superior Courts, 129 Me. 505, about which there seems to be considerable confusion in the mind of counsel.
The rule reads as follows:
The plaintiff appears to argue that, because the defendant attempted by a motion to dismiss to call to the attention of the court a matter outside the record, it thereby lost the right to have the action dismissed for a defect which was apparent on inspection of the record. Such is not the law. Only by a procedure which would constitute a waiver of the defective service is a party barred from taking advantage of it.
Rule 5 must be read in connection with Rev.Stat. 1930, Ch. 96, Sec. 37, and Ch. 91, Sec. 28. From these provisions it appears that on the overruling of a plea in abatement or other dilatory plea a defendant has the right to answer over on the merits if he so desires. On doing so he may proceed to trial and at the close bring forward to the Law Court his exceptions to the overruling of the plea. The entry of a general appearance and the filing of a plea to the merits will not constitute a waiver of defects provided the dilatory plea is filed in accordance with the rule. Maine Bank v. Hervey, 21 Me. 38; Stowell v. Hooper, 121 Me. 152, 116 A. 256; Klopot v. Scuik, 131 Me. 499, 162 A. 782. If the defendant does not answer over and there is no want of jurisdiction apparent on inspection of the record, a default may be entered. Jordan v. McKay, 132 Me. 55, 165 A. 902. The object of Rule 5 is to require a defendant to file his dilatory plea within the first two days of the return term. If he does not do so, he automatically waives the right to bring to the attention of the court matters dehors the record which could be shown under a strict...
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Estabrook v. Ford Motor Co.
...Bangor, for plaintiff. James E. Mitchell, of Bangor, for defendant. THAXTER, Justice. This is a companion case to Curtis G. Estabrook v. Ford Motor Company, Me., 10 A.2d 715, decided this day. As the issue in each case is identical, the entry will be the Exceptions overruled. DUNN, C. J., s......