Foisy v. Bishop

• Decision Date: 06 September 1967
• Citation: 232 A.2d 797
• Parties: Louis FOISY v. Wesley BISHOP and Lorenzo O. Roy.
• Court: Maine Supreme Court

Page 797

232 A.2d 797

Louis FOISY v. Wesley BISHOP and Lorenzo O. Roy.

Supreme Judicial Court of Maine.

Sept. 6, 1967.

Orville T. Ranger, Brunswick, for appellant.

Gerald M. Amero, Portland, for appellees.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE, and WEATHERBEE, JJ.

WEBBER, Justice.

This is an appeal from an interlocutory ruling vacating an attachment. there has been no hearing on the merits. The appeal is not prematurely taken. An order vacating an attachment falls within an exception to the 'final judgment' rule and is immediately appealable since 'great and irreparable loss' may otherwise result. See M.R.C.P., Rule 73; Field and McKusick, Comment Sec. 73.2; Swift & Co. Packers v. Compania Colombiana Del Caribe, (1950) 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206.

The complaint in the first instance alleged common ownership of real estate by plaintiff and defendants, the erection of a garage and outbuilding by the parties on the land held in common, and facts underlying the alleged need for partition. It further alleged that defendant Bishop 'willfully and knowingly destroyed the garage and outbuilding in violation of Title 14, Sec. 7552 M.R.S.A.' In addition to other demands not pertinent to this discussion, the complaint sought partition and equitable distribution of proceeds, and damages in the sum of $1600 against defendant Bishop presumably for the alleged destruction of commonly held property. Plaintiff next moved to amend his complaint in effect substituting for the words 'in violation of Title 14 Sec. 7552, M.R.S.A.' the words 'in violation of Title 14, Section 7505, and in violation of Title 17, Section 2491 M.R.S.A.' He also sought to increase the sum of damages demanded from defendant Bishop from $1600 to $2400. The defendants consented to the amendment but then moved to 'dismiss the action brought by Plaintiff under Title 14, Sec. 7505 and under Title 17, Sec. 2491 of the Maine Revised Statutes because the Complaint fails to state a claim under either of those statutes against defendant Wesley Bishop upon which relief can be granted.' Defendants further moved that pursuant to such dismissal, the court should order discharge of the attachment which plaintiff had initially made of defendant Bishop's property. The court then allowed plaintiff's amendment, dismissed 'that portion of Paragraph 4 (as amended) relating to Title 14, Section 7505,' but declined to dismiss that portion relating to a claimed violation of Title 17, Section 2491, permiitting plaintiff to further amend by substituting 'wantonly' for 'knowingly' in his allegation charging destruction of property. On the theory that 14 M.R.S.A. Sec. 4603 dissolved the attachment, the complaint having been amended by consent of the parties 'so as to embrace a larger demand than it originally did,' the court ordered the attachment dischared. The plaintiff seasonably filed an amendment to paragraph 4 by which he charged that 'Defendant Wesley Bishop willfully and wantonly or maliciously destroyed, injured, or defaced the garage and outbuilding in violation of Title 14, Sec. 7505, and in violation of Title 17, Sec. 2491 M.R.S.A.' Thus matters stood when this appeal was taken.

We conclude that the attachment was prematurely discharged. 14 M.R.S.A. Sec. 4602 provides in pertinent part: 'An attachment of real * * * property is dissolved * * * by an amendment of the complaint, by consent of parties, so as to embrace a larger demand than it originally did, and judgment for the plaintiff thereon, unless the record shows that no claims were allowed the plaintiff not originally stated in the complaint.' (Emphasis ours.)

It is obvious that the statutory references in the complaint and amendments were primarily designed to secure for the plaintiff multiple punitive damages. Recovery under 14 M.R.S.A. Sec. 7552, would have carried double damages, while under 14 M.R.S.A. Sec. 7505 or 17 M.R.S.A. Sec. 2491, if applicable, plaintiff might be awarded treble damages. Ordinarily the discharge of an attachment must await judgment at which time it can be ascertained with certainty whether or not plaintiff has been allowed claims 'not originally stated in the complaint.' In so saying we do not question the power and the duty of the presiding justice to discharge attachments which have become meaningless and burdensome because there is no theory upon which plaintiff can secure a money judgment which requires the continued security afforded by the attachment. That, however, is not the situation here.

We are in accord with the ruling of the justice below that 14 M.R.S.A. Sec. 7505 relates to land and not to buildings and structures or other improvements erected thereon. The statute provides:

'If any joint tenant or tenant in common of undivided lands cuts down, destroys or carries away trees, timber, wood or underwood, standing or lying on such lands, or digs up or carries away ore, stone or other valuable thing found thereon, or commits strip or waste, without first giving 30 days' notice in writing under his hand to all other persons or to their agents or attorneys, and to mortgagors and mortgagees if any there are interested therein, of his intention to enter upon and improve the land; * * *; or if he does any such acts pending a process for partition of the premises, he shall forfeit 3 times the amount of damages. Any one or more of the cotenants, without naming the others, may sue for and recover their proportion of such damages.' (Emphasis ours.)

This statute is of ancient origin and may be found, unchanged in substance, in Stat. 1821, Ch. 35, Sec. 2. It has been invoked many times but only with respect to the cutting of timber and the removal of stone-never in a case involving the destruction of buildings or structures. Hubbard v. Hubbard, (1839) 15 Me. 198; Moody v. Moody, (1839) 15 Me. 205; Maxwell v. Maxwell, (1850) 31 Me. 184; Dwinell v. Larrabee, (1853) 38 Me. 464; Mills v. Richardson, (1857) 44 Me. 79; Richardson v. Richardson, (1875) 64 Me. 62 (invasion of stone quarry) and Hall v. Hall, (1914) 112 Me. 234, 91 A. 949. In Richardson the court held that the statute must be narrowly construed because it is in derogation of common law and highly penal in its nature. It is perhaps in part because of this necessity for closely limited construction and in part because the statute is basically a notice statute giving protection to the contenant who gives proper notice before removing...