Fleming v. Courtenay

• Decision Date: 01 March 1901
• Citation: 95 Me. 128,49 A. 611
• Parties: FLEMING v. COURTENAY.
• Court: Maine Supreme Court

49 A. 611

95 Me. 128

FLEMING

v. COURTENAY.

Supreme Judicial Court of Maine.

March 1, 1901.

(Official.)

Exceptions from supreme judicial court, Lincoln county.

Action of debt by Alice E. Fleming against William Courtenay. The defendant filed a plea in abatement on the second day of the first term, to which the plaintiff demurred. The court overruled the demurrer and ordered the writ abated. The plaintiff moved to amend, but this motion was denied by the court for the reason that the declaration was not amendable at this stage of the proceedings. The plaintiff took exceptions to both rulings. Overruled.

Argued before WISWELL, C. J., and WHITEHOUSE, STROUT, SAVAGE, FOGLER, and POWERS, JJ.

O. D. Castner and E. Foster, for plaintiff.

J. E. Moore and G. B. Sawyer, for defendant.

WHITEHOUSE, J. This is an action of debt on a written agreement under seal between James A. Maynard, late of Somerville, Mass., and George W. Lawrence, late of Damariscotta, Me., growing out of the construction of the monitor Wassuc in 1863. The plaintiff is described in the writ as "sole executrix of the last will and testament of James A. Maynard," and the defendant as "administrator de honis non of the goods and estate of George W. Lawrence." The defendant seasonably filed a plea in abatement to the writ and declaration, alleging that the plaintiff was not at the date of the writ, and never had been, executrix of the last will and testament of James A. Maynard "in and for the state of Maine." To this plea the plaintiff demurred, but the presiding judge overruled the demurrer, sustained the plea, and ordered the writ to be abated. The case comes to the law court on exceptions to this ruling.

It appears that prior to the commencement of this action the plaintiff, Alice E. Fleming, of Boston, received from the assignee in bankruptcy of James A. Maynard a written assignment of all of the assets belonging to Maynard's estate. This fact is duly set forth in the second count of the declaration in her writ, and a copy of the assignment annexed to the writ and filed in court it is accordingly contended in behalf of the plaintiff that, while the first count must be conceded to be a declaration by the plaintiff in her representative capacity as executrix of James A. Maynard, the second count might reasonably be construed as a declaration on a personal claim in her individual capacity; and although the plaintiff may thus appear to have sued in a two-fold capacity in separate counts, and the declaration be amenable to the objection of a misjoinder, which might be taken advantage of by demurrer, it is insisted that the defendant's plea in abatement must be adjudged bad, because he has pleaded to the whole writ and declaration, and not simply to the defective part.

And such is undoubtedly the common-law rule of pleading.

In the early case of Herries v. Jamieson, 5 Term R. 553, the declaration in an action of debt contained two counts,—one for the principal of money borrowed, and the other for the interest of another sum. The defendant filed a plea in abatement to the whole writ and declaration, and the plaintiff demurred to the plea on the ground that it affected to answer the whole declaration, and yet answered only the first count. Lord Kenyon said: "I think the plea is bad, because it goes to the whole declaration, when in truth it gives no answer to the second count." So, in 1 Chit. PI. (16th Ed.) 475, it is said: "A writ is divisible, and may be abated in part and remain good as to the residue. * * * When the matter goes only to defeat a part of the plaintiff's cause of action, the plea in abatement should be. confined to that part; and, if the defendant were to plead to the whole, his plea would be defective."

The defendant insists, however, that this rule has no application to the case at bar, because he says the plaintiff has declared in her capacity as executrix in all of the counts in her writ. It is the opinion of the court that this contention of the defendant must be sustained as to the first and second counts, and that the remaining counts are fatally defective unless amended; for in the first and second counts it is represented that the contract was made with the "plaintiff's testator," and that the amount claimed is due to the plaintiff "as executrix," or that "an action hath accrued to the plaintiff as executrix aforesaid." The second count, as well as the first, must therefore be deemed a declaration by the plaintiff in her representative capacity, and the averment in that count of an assignment to her of all of the assets of the testator be regarded as surplusage.

But in each of the remaining counts it is declared that the defendant is indebted to the "plaintiff," and that "an action hath accrued to the plaintiff," and in the writ the plaintiff is represented to be "Alice E. Fleming, of Boston, * * * sole surviving executrix," etc. The specification shows the cause of action to be the same in all the counts. In neither of these last counts is any allusion made to a contract with the plaintiff's testator, or to the right of the plaintiff to recover "as executrix," but the defendant is represented as indebted "to the plaintiff." In this respect the situation is precisely analogous to that in Bragdon v. Harmon, 69 Me. 29, where it was held that the words "executor," etc., were only descriptio personse, and that an amendment striking them out did not change the legal status of the parties. "True," say the court in that case, "the plaintiff described himself in his writ as an executor, but the cause of action is described as one accruing to him in his own right. He does not aver that the promise on which the action is brought was made to the testator, nor that it was made to him as executor. * * * To constitute a suit in his representative capacity, the plaintiff must not only describe himself as an executor, but he must aver that the promise was made to the testator in his lifetime, or that it was made to the plaintiff as executor."

If, therefore, either of these last-named counts contained an averment of the assignment of the cause of action to the plaintiff, it would become a sufficient declaration by the plaintiff in her individual capacity; and, inasmuch as a copy of this assignment to the plaintiff is annexed to the writ, it seems clear, upon the authority of Bragdon v. Harmon, supra, that the declaration was amendable by striking out the first two counts, and inserting in each or either of the remaining counts an averment of the assignment to the plaintiff above mentioned, so as to become a good declaration in the plaintiff's own right.

But since the plaintiff is not executrix, and cannot recover on the first two counts, and the remainder of the declaration, without amendment, must be deemed a nullity, the plea in abatement was properly sustained, as the declaration now stands. But, as no motion to amend was made by the plaintiff "before exceptions filed and allowed," it is further insisted by the defendant that no amendment can now be made, and that the writ must abate. We are unable to concur in this view. Section 10, c. 82, Rev. St., thus declares: "No process or proceeding in courts of justice shall be abated, arrested, or reversed for want of form only, or for circumstantial errors or mistakes which by law are amendable, when the person and case can be rightly understood. Such errors and defects may be...