Smith v. Hunt

• Citation: 40 A. 698,91 Me. 572
• Parties: SMITH v. HUNT.
• Decision Date: 28 May 1898
• Court: Supreme Judicial Court of Maine (US)

40 A. 698

91 Me. 572

SMITH

v. HUNT.

Supreme Judicial Court of Maine.

May 28, 1898.

(Official.)

Exceptions from supreme judicial court, Penobscot county.

Assumpsit by Joseph P. Smith against Sumner Hunt. A plea in abatement to the writ was demurred to and the demurrer sustained. Defendant excepts. Exceptions overruled.

This was an action of assumpsit brought in the Bangor municipal court, in which plaintiff, a resident of Orrington, Penobscot county, declared against the defendant, a resident of Kennebec county, on an account annexed to the writ for $12.20. There was also an account in quantum meruit covering the same cause of action, and alleging a value of $15. But one recovery was claimed under the two counts. The ad damnum in the writ was $50. On the return day of the writ, defendant appeared specially by counsel for the purpose of pleading in abatement to the writ, and for no other purpose whatever, and on said return day his counsel filed a plea in abatement, to which plaintiff demurred. Defendant joined the demurrer. The presiding justice sustained the demurrer, adjudged the plea bad, and ordered the defendant to answer further. To these rulings of the presiding justice the defendant excepted without pleading anew.

The exceptions were certified to the chief justice under section 6 of the act establishing the Bangor municipal court.

The plea in abatement is as follows:

"State of Maine.

"County of Penobscot Bangor Municipal Court.

"At the term thereof begun and held at Bangor within and for said county of Penobscot on the third Monday of June, A. D. 1897. Joseph F. Smith v. Sumner Hunt.

"And now Sumner Hunt, the defendant named in the above-entitled action, comes and defends at the time and place aforesaid, and prays judgment of the plaintiff's writ and declaration aforesaid, because he says that at the time of the purchase and service of said writ, and long before, and ever since, his residence has been and now is Vassalboro, in the county of Kennebec, and not in any place in the county of Penobscot, and that none of his goods were attached within the county of Penobscot, nor was service of said writ made upon him within said county of Penobscot; and that the amount sued for in this action, as appears by the account annexed, is less than twenty dollars; and he further says that the ad damnum in said writ was fraudulently placed at a sum greater than twenty dollars, to wit, at the sum of fifty dollars, for the sole purpose of giving jurisdiction to this court, and for no other reason or purpose whatever; and he further alleges that at the time of the purchase and service of said writ, and long before, there was a court duly organized and existing under the laws of Maine at Waterville, in the county of Kennebec, called the 'Municipal Court of Waterville,' and that said municipal court of Waterville still exists, and ever had, and now has, full jurisdiction over his person and property and the subject-matter involved in this action; and this he is ready to verify. Wherefore he prays judgment of said writ that it may be quashed, and for his costs. Sumner Hunt, by Harvey D. Eaton, His Attorney and Agent." (Here follows the affidavit of said Eaton.)

A. H. Harding, for plaintiff.

H. D. Eaton, for defendant.

HASKELL, J. Assumpsit upon an account for $12.20, with a quantum meruit for the same cause of action, brought before the Bangor...