Hibbard v. Newman

• Decision Date: 20 June 1906
• Citation: 64 A. 720,101 Me. 410
• Parties: HIBBARD v. NEWMAN et al.
• Court: Maine Supreme Court

64 A. 720

101 Me. 410

HIBBARD

v. NEWMAN et al.

Supreme Judicial Court of Maine.

June 20, 1906.

Exceptions from Supreme Judicial Court, Piscataquis County.

Action by Eugene P. Hibbard against William Newman and the Maine Central Railroad Company, trustee. From two rulings of the trial court, defendant excepts. Exceptions overruled.

Assumpsit on account annexed to recover the sum of $16.80. The action was commenced by a trustee writ issued by the Dover municipal court, in Piscataquis county, dated September 22, 1904. On the return day of the writ the principal defendant filed a plea in abatement to the writ, the material part of which said plea is stated in the opinion. The plaintiff demurred to the plea, and the demurrer was sustained, and the plea adjudged bad.

Also, on the return day of the writ the trustee filed its disclosure making general denial that it had in its hands and possession goods, effects, or credits of the principal defendant, and in answer to interrogatories made further disclosures in the nature of a plea in abatement affecting the jurisdiction of the court, the material part of which said disclosure appears in the opinion. To this disclosure the plaintiff filed an answer in the nature of a demurrer, the material part of which also appears in the opinion. At the time of the service of the writ upon the trustee there was due from it to the principal defendant $31.50 as wages. The judge of the municipal court ruled that the trustee must raise the question of jurisdiction by plea in abatement and not by way of answer in its disclosure, and charged the trustee for the amount disclosed less its costs.

To the aforesaid rulings sustaining the demurrer to the plea in abatement, and that the trustee must raise the question of jurisdiction by plea in abatement and not by way of answer in its disclosure, the principal defendant excepted, and in accordance with the provisions of section 17, c. 507, p. 859, of the Private and Special Laws of 1889, these exceptions were duly entered in the law court for determination.

Argued before WISWELL, C. J., and EMERY, WHITEHOUSE, STROUT, SAVAGE, and PEABODY, JJ.

Hudson & Hudson, for plaintiff. L. B. Waldron, for principal defendant N. & H. B. Cleaves and S. C. Perry, for trustee.

PEABODY, J. This action was commenced by a trustee writ issued by the municipal court of Dover in Piscataquis county, dated September 22, 1904. On the return day, the third Tuesday of November, 1904, the principal defendant filed a plea in abatement to the writ and declaration alleging therein "that at the time of the purchase and service of the said writ, and long before and ever since, he, the said defendant, William Newman, resided in the town of Dexter in Penobscot county and not in Piscataquis county where said writ is returnable. That said Maine Central Railroad Company, alleged trustee in said writ, is a domestic corporation created and existing under the laws of Maine, has its established and usual place of business in Cumberland county (and not in Foxcroft in Piscataquis county as alleged), where it held its last annual meeting and usually holds its meetings, and that at the time of the purchase and service of said writ, and long before and ever since, there has existed and still exists in Portland in said Cumberland county a municipal court for said Portland, with a jurisdiction sufficient in this case. Wherefore said plaintiff, if he had any good cause of action against the said defendant and against the Maine Central Railroad Company, as alleged trustee therein, ought to have commenced the same before such municipal court of Portland and not before this Dover municipal court." To this plea the defendant filed a demurrer "because insufficient in law" which was sustained by the court.

Also, on the return day of the writ the trustee filed its disclosure making general denial that it had in its hands and possession goods, effects, or credits of the said principal defendant, and on its examination in answer to interrogatories further disclosed that "the said Maine Central Railroad Company is and was at the time of the service of the writ in this case upon it a domestic corporation being created and existing under the laws of said state of Maine, with its business office at Portland in the county of Cumberland, where its meetings are held and where its last annual meeting was held, and that service was made upon its clerk at said Portland; and it denies that this court has jurisdiction over it in this proceeding. At the time of the service of the writ upon said alleged trustee there was due to William Newman the sum of thirty-one dollars and fifty cents (31.50) as wages for his personal services in the employment of said alleged trustee." To this disclosure the plaintiff filed an answer in the nature of a demurrer that it is insufficient in law because it is argumentative, leaving it for argument and inference that it does not have a usual place of business at said Foxcroft because it stated that at the time of the service of the writ it was a domestic corporation being created and existing under the laws of the state of Maine with its business office in Portland in the county of Cumberland, etc., and does not state that such were facts at the time of the purchase of the writ, and because it sets up by way of disclosure lack of...