Fletcher v. Somerset R. Co.

• Decision Date: 21 February 1883
• Citation: 74 Me. 434
• Parties: SUSAN S. FLETCHER, administratrix, in equity, v. THE SOMERSET RAILROAD COMPANY and others.
• Court: Maine Supreme Court

74 Me. 434

SUSAN S. FLETCHER, administratrix, in equity, v. THE SOMERSET RAILROAD COMPANY and others.

Supreme Judicial Court of Maine.

February 21, 1883

ON REPORT on agreed statement.

The plaintiff brings this bill as administratrix on the estate of George A. Fletcher against the Somerset Railroad Company John Ware and Fred A. Coolidge.

The bill sets out that the complainant as administratrix recovered judgment against the railroad company October 18 1881, for one thousand two hundred and one dollars damages and forty-eight dollars and nine cents costs of suit, and November 11, 1881, she caused the same to be levied on certain real estate of the company in Anson--a real estate attachment having been made on the original writ February 17 1876.

That S. C. Mills and Company caused to be made a real estate attachment in an action in their favor, against the same railroad company January 26, 1876, and recovered judgment in that action against the company for two thousand eight hundred fifty-six dollars and sixty-seven cents damages, and thirty-nine dollars and three cents costs of suit, and caused the same to be levied by Fred A. Coolidge, one of the defendants, who was a deputy sheriff, upon the same real estate upon which the complainant's levy was subsequently made as above stated. That S. C. Mills and Company, July 12, 1881, conveyed their interest in the land levied upon to John Ayer, another of the defendants. That James J. Parlin and Sherman W. Hapgood, two of the appraisers at the time of the levy of the judgment of S. C. Mills and Company, were at the time inhabitants of the town of Anson, and that town was at the same time a stockholder in The Somerset Railroad Company. And the bill prayed that Coolidge be required to amend his return of the levy of the judgment of S. C. Mills and Company, in accordance with the facts; that the levy be declared void and that Ayer be required to release to the complainant in order to remove the cloud from her title.

A. H. Ware, for the plaintiff.

The statute requires appraisers to be disinterested men. Were Parlin and Hapgood disinterested?

In a case in Massachusetts, Boston v. Tileston, 11 Mass. 468, the court say,

" As it is to be presumed in this case that the officer who served the execution returned that the appraisers were disinterested freeholders, perhaps on a trial between the parties that fact would not be traversable. But here the parties have agreed that the appraisers were inhabitants of the town of Boston. As such they were parties to the suit in which the execution issued, and as such they were certainly not disinterested. The statute referred to by the counsel for the demandants has removed the objection of incompetency as witnesses from corporators, which shows that they were not competent at common law. But it would be going far beyond the plain and apparent intent of the legislature to extend that provision to the case of appraisers on the extent of executions."

In Norridgewock v. Sawtelle, 72 Me. 486, the court held that a justice of the peace, chosen by the officer to hear a poor debtor's disclosure, who resided in the town of Norridgewock, was not disinterested.

No juror can sit in a case where his town is interested. Hawes v. Gustin, 2 Allen 403.

No judge is allowed to sit in the trial of an action in which the county or town in which he resides is a party or interested. R. S., c. 82, § 29; Pearce v. Atwood, 13 Mass. 324.

G. T. Stevens, for The Somerset Railroad Company.

C. A. Harrington, for John Ayer.

D. D. Stewart, for Fred A. Coolidge.

PETERS, J.

Waiving all preliminary questions standing in the way of it, we will examine the question, whether the appraisers in the first levy were competent persons for the duty performed by them. It is alleged that they were not disinterested, because the town, in which they resided and where they possessed taxable estates, was a...