Copp v. Copp

68 A. 458, 103 Me. 51, 1907 Me. LEXIS 11

• Court: Supreme Judicial Court of Maine
• Decided: August 24, 1907
• Status: Published

Opinion

Emery, C. J.

By the writ in this case the officer was commanded to attach the property of the personal defendant, and also certain specific logs for the enforcement of a lien claimed by the plaintiff upon them. This was done and the writ properly returned and entered in the Rumford Falls Municipal Court. The personal defendant did not appear, but one Pressey, the owner of the logs thus attached, did appear voluntarily and became a party to the suit as he was authorized to do by R. S., chapter 93, section 63. Sundry pleadings between the plaintiff and Pressey were then filed in that court and rulings made, whereupon the whole case was reported direct to the Law Court upon agreed statement for disposition according to Sec. 2 of Ch. 239 of Private Laws of 1903 amendatory of the act establishing the Rumford Falls Municipal Court.

Mr. Pressey demurred to the declaration as insufficient for a lien judgment against his logs. While in the command to the officer to. attach the logs it was stated that the plaintiff claimed a lien on them; in the declaration there was no mention of any lien claim nor of any facts constituting a lien. There were two counts only, one upon an account annexed for " six months labor at $35,” and the other the usual omnibus count. In neither of them were there any words showing that the suit was brought- to enforce a lien as required by the statute, R. S., chapter 93, section 61. It follows that the plaintiff cannot have judgment against the logs.

The plaintiff’s claim for a lien was purely statutory and could be enforced only by compliance with the statute providing therefor. The words of that statute are " The declaration must show that the suit was brought to enforce the lien.” It is not enough that it so appears in some part of the writ, outside of the declaration. It must appear in the declaration itself. Parks v. Crockett, 61 Maine, 489.

The plaintiff contended in argument that Mr. Pressey could not raise the question of the sufficiency of the declaration by demurrer but only by motion to dissolve the attachment. Pressey, however, became a party to the suit by authority of the statute and as such party could interpose any defence of law or fact that would prevent judgment against his property attached. Parks v. Crockett, supra.

It further appears from the pleadings and the agreed statement that the plaintiff and the personal defendant are husband and wife, and were such at the date of the writ. It is admitted that no judgment should be rendered against him, hence the action should be dismissed.

Demurrer to the declaration sustained.

Action dismissed with costs for the owner of the logs from the time of Ms appearance.