Littlefield v. Me. Cent R. Co.

• Decision Date: 01 April 1908
• Citation: 71 A. 657,104 Me. 126
• Parties: LITTLEFIELD et al. v. MAINE CENT R. CO.
• Court: Maine Supreme Court

71 A. 657

104 Me. 126

LITTLEFIELD et al.

v. MAINE CENT R. CO.

Supreme Judicial Court of Maine.

April 1, 1908.

(Official.)

Exceptions from Supreme Judicial Court, Knox County.

Replevin by A. S. Littlefield and others, as receivers of the Rockland, South Thomaston & Owls Head Street Railway against the Maine Central Railroad Company. Defendant's motion to dismiss was overruled, and it excepts. The case was also brought before the Supreme Judicial Court on a report of the evidence. Exceptions overruled. Judgment for plaintiffs.

Action of replevin brought by the plaintiffs as receivers of the Rockland, South Thomaston & Owls Head Street Railway for one reel of copper trolley wire alleged to have been taken and detained by the defendant. The plaintiffs' writ and declaration were as follows:

"State of Maine, Knox—ss.

"To the Sheriff of Our County of Knox, or His Deputy—Greeting:

"We commend you that you replevy the goods and chattels following, viz.: One reel 4-O grooved copper trolley wire belonging to A. S. Littlefield, S. T. Kimball, both of Rockland, and J. E. Moore, of Thomaston, Knox county, Me., as receivers of the Rockland, South Thomaston & Owls Head Railway, now taken and detained by Maine Central Railroad Company in Rockland aforesaid, and them deliver unto the said Littlefield, Kimball, and Moore, receivers, provided the same are not taken and detained upon mesne process, warrant of distress, or upon execution as the property of said Littlefield, Kimball, and Moore, receivers, and summon the said Maine Central Railroad Company that it may appear before our justices of our Supreme Judicial Court, next to be holden at Rockland, within and for the county of Knox, on the 1st Tuesday of April next, to answer unto the said Littlefield, Kimball, and Moore, receivers, in a plea of replevin, for that the said Maine Central Railroad Company, on the 1st day of March at said Rockland unlawfully, and without any justifiable cause, took the goods and chattels of the said Littlefield, Kimball, and Moore, receivers, as aforesaid, and them unlawfully detained to this day, to the damage of the said Littlefield, Kimball, and Moore, receivers, as they say, the sum of $500; provided, they the said Littlefield, Kimball, and Moore as receivers shall give bond to the said Maine Central Railroad Company with sufficient surety, or sureties, in the sum of $1,000, being twice the value of the said goods and chattels, to prosecute the said replevin to final judgment, and to pay such damages and costs as the said Maine Central Railroad Company shall recover against them, and also to return and restore the same goods and chattels, in like good order and condition as when taken, in case such shall be the final judgment; and have you there this writ with your doings therein, together with the bond you shall take.

"Witness, Lucillius A. Emery, Chief Justice of our Supreme Judicial Court at Rockland, the 1st day of March, A. D. 1907.

"Gilford B. Butler, Clerk."

A bond to the defendant, as required by the writ, for the sum of $1,000, "being twice the value of said goods and chattels," was duly executed by the plaintiffs as principals, and by the National Surety Company, "a corporation duly organized by law and having an office at said Rockland," as surety. See Rev. St. c. 49, § 119.

The writ was duly entered at the April term, 1907, Supreme Judicial Court, Knox county, at which time the defendant filed a motion to dismiss the action for the following reasons:

"First. Because the goods and chattels mentioned, and which the officer was commanded to take, are not definitely or sufficiently described.

"Second. Because the plaintiffs are not named as owners, or that they have or had a right of possession to the articles named.

"Third. Because thereis no averment in the writ of a demand having been made upon the defendant before this action was commenced, or that said article was tortiously or unjustly taken or detained.

"Fourth. Because there is no averment or statement in the writ of the value of the article alleged to have been taken and detained.

"Fifth. Because the bond is not signed with sufficient sureties.

"Wherefore the defendant prays judgment of said writ, and for a return of the goods and chattels therein named."

This motion was overruled, and the defendant excepted. The action was then continued to the September term, 1907, of said court, at which time it came on for trial. The defendant pleaded the general issue with brief statement as follows:

"And said defendant, by brief statement of its further defense, says that the goods and chattels, viz., the coil of wire mentioned in plaintiffs' writ, were not, at the time of the issuing of said writ, owned or possessed by the plaintiffs, nor were said goods and chattels ever owned or possessed by the plaintiffs, and neither were they then or now entitled to the possession thereof as receivers or otherwise.

"And the defendant further says that, at the time of the issuing and service of said writ, C. Gardner Chalmers, of Bangor, was the owner thereof, but before that time said Chalmers had deposited with and intrusted to the defendant said coil of wire for shipment, whereby, and by reason whereof, the defendant became the owner thereof pro hoc vice, and the same was then and there rightfully in its possession, and was then and there wrongfully and illegally taken therefrom, and are in law entitled to a judgment for a return thereof to it."

At the conclusion of the evidence it was agreed that the case should be reported to the law court for decision "upon so much of the evidence as is legally admissible; the law court to render such judgment as the law and the legal evidence require." It was also agreed that the defendant's exceptions to the overruling of the motion to dismiss should be carried to the law court as a part of the case.

It was admitted that the Rockland, South Thomaston & Owls Head Railway was duly organized as a railroad company.

Clause 3 of the original decree appointing receivers of the aforesaid Owls Head Railway reads as follows:

"Said receivers are hereby authorized and directed to take possession of all the real and personal property of said Rockland, South Thomaston & Owls Head Railway, including its line of railway, its equipment, franchise rights, and including all deeds, books, vouchers, accounts, contracts, papers and documents. Said receivers shall preserve, manage and care for said property, may employ all necessary servants, agents and employés, shall collect and receive all money due or that may hereafter become due to said company from whatever source and shall pay all wages and caring for said property. Said receivers are authorized to prosecute and maintain any suits at law or in equity for the recovery, preservation or protection of said property."

All the material facts appear in the opinion, and in Chalmers v. Littlefield et al., 103 Me. 271, 69 Atl. 100.

Argued before WHITEHOUSE. SAVAGE, SPEAR, CORNISH, and KING, JJ.

J. E. Moore, A. S. Littlefield, and S. T. Kimball, for plaintiff.

D. N. Mortland, for defendants.

CORNISH, J. This is an action of replevin for one reel of copper trolley wire, a part of a quantity purchased by the Rockland, South Thomaston & Owls Head Railway, for use in the construction of a street railway from the Rockland Line to Crescent Beach and Owls Head.

The plaintiffs claim title as receivers of said railway. The defendant denies the title of the plaintiffs, and sets up right of possession in itself as bailee of C. Gordon Chalmers, who claims ownership by virtue of an attachment, in an action of assumpsit brought by him against the corporation July 12, 1904, and an execution sale thereon made June 14, 1906. The case is before this court on defendant's exceptions to the overruling of its motion to dismiss, and also on a report of the evidence.

1. Motion to dismiss.

The defendant alleges five grounds for dismissal, four of which should have been raised, if at all, by demurrer to the declaration, and not by a motion to dismiss. These are: Insufficient description of property taken; want of allegation of ownership, or right of possession in the plaintiffs; want of allegation of demand before suit; and want of allegation of value. It is familiar law that a motion to dismiss will lie only when it is apparent on the record that the court has no jurisdiction, as in case of want of indorser to an original writ (Clapp v. Balch, 3 Me. 216; Pressey v. Snow, 81 Me. 288, 17 Atl. 71), or of writ running without warrant against the body of the defendant (Cook v. Lothrop, 18 Me. 260), or of want of service (Searles v. Hardy, 75 Me. 461), and analogous cases. But an action at law is not to be dismissed, if it appears that the court has jurisdiction, and the plaintiff has stated a good cause of action, for mere defects in pleading that are amendable or may be cured by verdict. The defendant should demur if he wishes to raise objections to such defects. A motion to dismiss and a demurrer are not interchangeable. The former can be used to abate an action only when it is apparent from the record that the court has no jurisdiction. The latter admits the jurisdiction, but attacks the pleadings. An order of dismissal is a finality. The action ends. Not...