McInnes v. McKay

• Decision Date: 11 April 1928
• Citation: 141 A. 699
• Parties: McINNES et al. v. McKAY.
• Court: Maine Supreme Court

141 A. 699

McINNES et al.

v. McKAY.

Supreme Judicial Court of Maine.

April 11, 1928.

Exceptions from Superior Court, Cumberland County, at Law.

Action by Hector McInnes and others against James A. McKay. Defendant's plea to the jurisdiction and motion to declare the writ and summons null and void were overruled, and he brings exceptions. Exceptions overruled.

Argued before WILSON, C. J, and PHILBROOK, DUNN, DEASY, STURGIS, and BASSETT, JJ.

Sidney St. F. Thaxter and Carl W. Smith, both of Portland, for plaintiffs.

Bradley, Linnell & Jones, of Portland, and Locke, Perkins & Williamson, of Augusta, for defendant.

BASSETT, J. Action on case to recover $969.50 for alleged services and disbursements and interest from agreed date of demand. The defendant appeared specially to object to the jurisdiction of the court and filed a plea and motion that the writ and summons be declared null and void. The evidence, presented in support of the plea and motion, was an agreed statement of facts. The presiding justice overruled the plea and motion and the defendant seasonably excepted. The case comes up on the exceptions and agreed statement.

The plea and motion raised this single issue of law that the statutes of this state providing for attachment are unconstitutional and void because they deprive the defendant of property without due process of law as guaranteed by the Fourteenth Amendment of the Federal Constitution.

The procedure in this case in all its details from the purchase of the blank writ in the office of the clerk of Cumberland county superior court to the entry of the writ in court on the return day is set out. in the agreed statement. The attorneys of the plaintiff filled out the writ in the usual way, attached by a duly authorized officer all the defendant's real estate in Washington county, a few days later attached all the defendant's share interest in a corporation, served the defendant with summons in usual form and within the required time, and entered the writ in court on the return day.

The value of the real estate and stock attached was admittedly many times in excess of the amount of the ad damnum of the writ, but no question is raised that the attachment was excessive and illegal.

The one issue is the unconstitutionality of the attachment statute, the defendant contending that, an attachment deprives an owner of many rights comprised in the term "property" and that the statutes of Maine authorize general attachment without first filing an affidavit, of the cause of the attachment or setting out prima facie proof of good faith and giving bond or security, which are necessarily reasonable requirements to protect the defendant; that the statutes of practically all the states excepting Massachusetts, New Hampshire, Connecticut, and Maine require both affidavit and bond, a very few one or the other; that the statutes of the four named states, which are the same as Maine, permit attachment without affidavit or security and thereby go to an extreme never contemplated by the framers of the Constitution; that such general attachment, in advance of judgment, it being in essence a judgment in advance, is depriving the defendant of property without due process of law.

To determine the answer to these contentions, we will first examine what is the foundation of the practice and procedure of attaching the property of a defendant and holding it to satisfy a judgment which the plaintiff may recover, when, perhaps, judgment may be for the defendant.

It rests solely on statute. Bradford v. McLellan, 23 Me. 302. It is given expressly by our statutes. Bev. Statutes c. 86, § 2, provides:

"All civil actions, except scire facias and other special writs, shall be commenced by original writs; which, in the Supreme Judicial Court, may be issued by the clerk in term time or vacation, and framed to attach the goods and estate of the defendant, and for want thereof to take the body, or as an original summons, with or without an order to attach goods and estate."

Other sections follow providing for attaching personal property or real estate and section 69 provides that such attachment shall continue for 30 days and no longer after final judgment in the original suit with certain exceptions.

The statutes since the first revision in 1840 (Bev. St. 1841, c.114) have expressly provided for the commencement of civil actions by original writs thus framed and for the continuation of attachment for 30 days after judgment.

Between 1820, when Maine separated from Massachusetts and become a sovereign state, and 1840, our statutes were "but re-enactments of those contained in the statute (Massachusetts) of 1784 and their construction should be received." Maine Charity School v. Dinsmore, 20 Me. 278, enacted by our first Legislature in 1821, Laws of Maine 1821-34, cc. 59, 60, pp. 328, 383.

The Massachusetts Statutes of 1784 with intervening acts were published in 1801 and 1807 and were "the statutes now in force" when in Bond v. Ward, 7 Mass. 128, 5 Am. Dec. 28 (1810) Chief Justice Parsons said:

"The' practice of attaching the effects of a defendant, and holding them to satisfy a judgment, which the plaintiff may recover, when perhaps judgment may be for the defendant, is unknown to the common law, and is founded on our statute law, explained by an usage founded in the ordinances in force under the colonial charter."

For some time under that charter attachment was, as it. was at common law, merely a distress, a seizing of his chattels, to compel the defendant to appear when he did not appear on summons and answer, his chattels being restored to him when he appeared and forfeited when he did not. But Colonial Ordinances (Colonial Laws Mass. Beprinted from Edition of 1660, p. 124) provided that a plaintiff could take out either a summons or attachment against the defendant and (page 144) since if the goods were released on appearance the plaintiff, recovering judgment, might not find them to seize on execution that the attachment should remain until judgment was satisfied, provided the execution was sued out and satisfied in 30 days after judgment. This practice was sanctioned by the Provincial Act of 13 Wm. III, c. 11 (1701). Although there was no express provision that an attachment could go before summons it became under the ordinances and the statute established usage and procedure and was, as the Chief Justice said, "now law by the statutes in force."

The usage and practice, therefore, of instituting suit by either attachment without affidavit or bond or by summons, and, if by attachment, one that remained until satisfaction of judgment, if execution were taken out...