Inhabitants of Mt. Desert v. Inhabitants of Tremont

• Decision Date: 07 June 1881
• Citation: 72 Me. 348
• Parties: INHABITANTS OF MT. DESERT v. INHABITANTS OF TREMONT.
• Court: Maine Supreme Court

72 Me. 348

INHABITANTS OF MT. DESERT v. INHABITANTS OF TREMONT.

Supreme Judicial Court of Maine.

June 7, 1881

ON REPORT.

An action to recover such portion of the sum of $1200, paid by the town Mt. Desert, in a settlement of judgment upon a liability of that town existing June 3, 1848, when the town of Mt. Desert was divided and the town of Tremont was incorporated, as is provided by the act of separation special laws, 1848, c. 98.

The opinion states the case.

L A. Emery, for the plaintiffs, cited: North Yarmouth v. Skillings, 45 Me. 133; State v. Madison, 59 Me. 538; Cyr v. Dufour, 62 Me. 20; Topsham v Lisbon, 65 Me. 449; Brewster v. Harwich, 4 Mass. 278; Godfrey v. Rice, 59 Me. 308.

A P. Wiswell, for the defendants.

No notice was given to the town of Tremont to appear and defend, or take part in the defence of, the action of Kimball against the town of Mt. Desert. There can be no question then, that any defence which Mt. Desert could or should have made to the original action can now be made by these defendants, it being the first opportunity they have had to be heard upon that question. And the judgment rendered in that case cannot be conclusive against Tremont, not having been a party or privy to the action. Counsel then ably argued the questions which arose in the case of Kimball v. Mt. Desert, contending that Kimball had no legal claim against Mt. Desert and that therefore, at the time of the separation, as there was no liability upon the part of Mt. Desert to pay Kimball anything, and as the suit of Kimball against Mt. Desert was not then pending, the act of separation imposed no liability on the defendants to pay any part of the Kimball judgment.

LIBBEY J.

This action is brought to recover of the defendants their proportion of the sum paid by the plaintiffs to Daniel Kimball in discharge of a judgment recovered by him against them on a claim for property taken by warrant of distress against Mt. Desert, prior to June 3, 1848.

At their October term, 1837, the county commissioners of Hancock county located a county way in Mt. Desert, and ordered it opened in two years. At their April term, 1846, a petition was presented for the appointment of an agent to open the way, and an agent was duly appointed therefor, who made a contract for constructing and opening the way; and afterwards presented his account of his disbursements, which was allowed and judgment duly entered up by said commissioners, in his favor for $927.71, at their November term, 1847.

No objection is made to the regularity of the proceedings after the appointment of the agent to the allowance of his account.

On this judgment a warrant of distress was issued against the town, February 8, 1848; and by it the sheriff of the county, on the 22d of April, 1848, took and sold the property of said Kimball, who was an inhabitant of the town.

By c. 98 of special laws of 1848, approved June 3, 1848, the town of Mt. Desert was divided, and a portion of it was incorporated a new town by the name of Mansel. By c. 160 of the special laws of the same year, the name of the new town was changed to Tremont.

Section two of the act of separation is as follows: " Said town of Mansel shall be holden to pay the said town of Mt. Desert such proportion of the debts and liabilities of the said town of Mt. Desert, beyond their resources now existing, and which may hereafter arise in consequence of any and all suits at law now pending against or in favor of said town of Mt. Desert; and also assume the support of such proportion of all persons, supported as permanent or occasional paupers by said town of Mt. Desert, as the last valuation of that portion set off hereby, bears to the whole valuation of the town of Mt. Desert."

Section three provides for the payment by the inhabitants of the town of Mansel of all taxes which had been assessed upon them by Mt. Desert and remain unpaid. Section four provides for an equitable division of the school money which had been raised by Mt. Desert.

It is agreed that the proportion of the valuation of the new town to the whole valuation of the old at the time of division was as fifty-six to one hundred.

On July 28th, 1848, said Kimball commenced an action in the district court for said county, returnable at the October term, against the town of Mt. Desert for the value of his property taken and sold on the warrant of distress against the town. The action was duly entered when the defendants appeared by counsel and it was continued to the April term 1849, when it was taken by appeal to the Supreme Judicial Court, and was duly entered in said court and continued to the May term, 1850, when it was tried to the jury, and a verdict rendered for the plaintiff for $426.80 damages; and judgment was duly rendered for that sum and $58.23 costs.

On that judgment said Kimball brought an action in said court at the April term, 1865, and recovered judgment for $930.00 debt and $21.26 costs.

On the second judgment said Kimball brought an action in said court, at the April term, 1869, and recovered judgment for $1157.85 debt, and $11.24 costs.

On the last named judgment said Kimball brought an action in said court at the October term, 1872, and recovered judgment for...