Nat'l Publicity Soc. v. Raye

• Decision Date: 07 August 1916
• Citation: 98 A. 300
• Parties: NATIONAL PUBLICITY SOC. v. RAYE.
• Court: Maine Supreme Court

98 A. 300

NATIONAL PUBLICITY SOC.

v. RAYE.

Supreme Judicial Court of Maine.

Aug. 7, 1916.

King, Haley, and Madigan, JJ., dissenting.

Exceptions from Supreme Judicial Court, Washington County, at Law.

Action by the National Publicity Society against J. Wesley Raye. To the ruling quashing the writ and adjudging plea in abatement to be good, plaintiff excepts. Exceptions overruled.

Argued before SAVAGE, C. J., and CORNISH, KING, HALEY, HANSON, PHILBROOK, and MADIGAN, JJ.

E. W. Pike, of Eastport, and C. B. & E. C. Donworth, of Machias, for plaintiff. E. B. Jonah, of Eastport, and J. H. Gray, of Lubec, for defendant.

CORNISH, J. This is an action of assumpsit brought to recover the sum of $60.82 on an account annexed. The ad damnum is $125. The plaintiff is a New York corporation, and the defendant a resident of Eastport. The writ was entered at the October term, 1915, of the Supreme Judicial Court for Washington county, at which term the defendant seasonably filed a plea in abatement alleging that the attorney who instituted the suit and brought and entered the writ was at the time the judge of the Eastport municipal court, and was prohibited by the statute creating that court from acting as attorney or counsel in any action, matter, or thing within its jurisdiction. To this plea the plaintiff demurred. Upon hearing, the demurrer was overruled, the plea in abatement was adjudged good, and the writ was ordered to be quashed. The case is before this court on plaintiff's exceptions to this ruling of the presiding justice.

Three questions present themselves: First, was this action within the jurisdiction of the Eastport municipal court? Second, was the judge of that court prohibited from bringing and maintaining it? Third, if so, should the action itself have been abated?

On the first point we hold that the action was within the jurisdiction of the Eastport municipal court. This court was established by chapter 219 of the Private and Special Laws of 1903, and under section 3 is given "exclusive original jurisdiction of all civil actions in which the debt or damage demanded do not exceed $20, and both parties, or one of the parties or a person summoned in good faith and on probable grounds as trustee, reside in said city of Eastport," etc. The phrase "debt or damage demanded" used in this connection is determined in all actions sounding in damages, as in assumpsit and tort, by the ad damnum in the writ, and not by computing the amount due on the specific claim or account annexed as set forth in the declaration. Estes v. White, 61 Me. 22; Cole v. Hayes, 78 Me. 539, 7 Atl. 391; Spaulding v. Yeaton, 82 Me. 92, 19 Atl. 156; Smith v. Hunt, 91 Me. 572, 40 Atl. 698.

Under section 4 the Eastport municipal court is given original jurisdiction, concurrent with the Supreme Judicial Court, of all civil actions in which "the debt or damage demanded, exclusive of costs, do not exceed one hundred dollars, in which either party, or a person summoned in good faith and on probable grounds as trustee, reside in said city of Eastport, or in the towns of Cutler, Whiting, Perry or Pembroke." The difference in phraseology between section 3 and section 4 is marked. Under section 3, the exclusive jurisdiction of the municipal court depends upon "the debt or damage demanded," which our court has held to be the ad damnum stated in the writ. Under section 4 the jurisdiction concurrent with the Supreme Judicial Court is governed by "the debt or damage demanded, exclusive of costs." To determine this we must look, not to the ad damnum which is intended to and does include both debt and costs, and which cannot be separated into its component parts, but to the specific claim set forth in the writ. From that alone we can ascertain what the plaintiff claims independent of costs. Therefore under section 4 an inspection of the specific demand in the account annexed must determine the question of concurrent jurisdiction. Here we find the account annexed to be $60.82, and therefore the action was clearly within the concurrent jurisdiction of the municipal court and of the Supreme Judicial Court, even though the ad damnum was in excess of $100.

2. The second question we must also answer in the affirmative. Section 1, after prescribing the qualifications and duties of the judge, concludes with this express inhibition:

"He shall not act as attorney or counsel in any action, matter or thing within the jurisdiction of said court."

The term jurisdiction is here used in its broad sense to include both exclusive and concurrent jurisdiction, both those eases which must be brought in the court over which the municipal judge presides, and those which may be there brought. The plain intent of the act taken as a whole was to create a court in the city of Eastport which should have a broader jurisdiction than a trial justice and should facilitate the administration of law at a lessened expense by enabling litigants in Eastport and the other towns named to have access to a tribunal conveniently located and with more frequent terms than the Supreme Judicial Court.

And the plain purpose of this prohibition was to prevent the incumbent of the office from thwarting the general intent of the act by diverting litigation from his own court into the Supreme Judicial Court as it must be diverted if he is to act as counsel, thereby causing additional and unnecessary expense to the parties. The present case is an illustration. The defendant in the case at bar was a resident of Eastport. The expense connected with a trial in the municipal court in that city would have been slight compared with the expense of a trial in distant Machias or Calais where the terms of the Supreme Judicial Court are held. And we can conceive of a situation where, owing to the diligence or popularity of the attorney who holds the office of judge, a large amount of litigation would be brought to him by clients, to which the door of his court would thereby be closed, while in the hands of another attorney both doors would be open. It was for this reason that the Legislature enacted this prohibition. To permit the judge to bring writs in the Supreme Judicial Court which might have been brought in the municipal court would violate the plain words of the act. He cannot do this. This much the attorney must sacrifice, who accepts the judicial position.

3. If the bringing of the writ was contrary to law, it follows that the writ itself was properly abated. This is not the case of a plea in abatement to take advantage of technical defects according to the course of common-law pleading. If it were, R. S. c. 84, § 10, might apply, which provides that:

"No process or proceeding in courts of justice shall be abated, arrested or reversed, for want of form only, or for circumstantial errors or mistakes which by law are amendable, when the person and the case can be rightly understood. Such errors and defects may be amended, on motion of either party, on such terms as the court orders."

That statute has no application here. It was passed to ameliorate the rigors of the common law. Here, however, there was neither want of form, nor circumstantial errors or mistakes which are by law amendable. The writ is in proper form and needs no amendment. The cause of the abatement is not in the writ itself, but in the prohibition contained in the legislative charter.

Nor does it aid the plaintiff to say that under R. S. c. 81, § 45:

"Parties may plead and manage their own causes in court or do so by the aid of such counsel, not exceeding two on a side, as they see fit to employ; or by any citizen of good moral character who produces in court a letter of attorney for that purpose."

The plaintiff did not avail itself of the privilege of acting in its own behalf, but employed one who was, in this class of cases, disqualified from acting. The situation is more akin to the next clause in the last-cited section, viz.:

"But no person whose name has been struck from the roll of attorneys for misconduct shall plead or manage causes in court under a power of attorney from any other party."

The precise issue to be settled is the scope and effect of this prohibiting clause....