Patten v. Kimball

Supreme Judicial Court of Maine

Patten v. Kimball

73 Me. 497, 1882 Me. LEXIS 77

DecidedMay 29, 1882

StatusPublished

This text of 73 Me. 497 (Patten v. Kimball) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Patten v. Kimball, 73 Me. 497, 1882 Me. LEXIS 77 (Me. 1882).

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Opinion

Danforth, J.

Though the bond in this case'is not technically a statute bond, it was taken under and by force of E. S., 1857, c. 113. There was no other authority by which it could have been taken. Therefore the limit provided in § 45, of that chapter, must be held applicable and the action not having been commenced within the year cannot be maintained.

It also appears that the first alternative condition of the bond was performed. The only objection made upon this branch of the case is a want of sufficient service of the citation. By the statute of 1860, c. 142, in force when the bond was given, and when the citation was served, a service upon the attorney of record was sufficient. As the bond makes no provision as to service, this statute must govern. Smith v. Brown, 61 Maine, 70. If it was sufficient to serve it upon the attorney of record, it was competent for him to waive any illegality in the service. Lord v. Skinner, 9 Allen, 376. The case finds that Mr. Knowlton was the attorney of record and the proof of his waiver is conclusive. It is in writing and his signature is not denied.

Judgment for defendants.

Arrleton, C. J., Walton, Barrows and Peters, JJ., concurred.

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Danforth, J.

Though the bond in this case'is not technically a statute bond, it was taken under and by force of E. S., 1857, c. 113. There was no other authority by which it could have been taken. Therefore the limit provided in § 45, of that chapter, must be held applicable and the action not having been commenced within the year cannot be maintained.

It also appears that the first alternative condition of the bond was performed. The only objection made upon this branch of the case is a want of sufficient service of the citation. By the statute of 1860, c. 142, in force when the bond was given, and when the citation was served, a service upon the attorney of record was sufficient. As the bond makes no provision as to service, this statute must govern. Smith v. Brown, 61 Maine, 70. If it was sufficient to serve it upon the attorney of record, it was competent for him to waive any illegality in the service. Lord v. Skinner, 9 Allen, 376. The case finds that Mr. Knowlton was the attorney of record and the proof of his waiver is conclusive. It is in writing and his signature is not denied.

Judgment for defendants.

Arrleton, C. J., Walton, Barrows and Peters, JJ., concurred.

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Bluebook (online)

73 Me. 497, 1882 Me. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patten-v-kimball-me-1882.