Snow v. Bartlett

64 Me. 384

Opinion

Danforth, J.

By the B. S., c. 87, § 10, “when either of several plaintiffs or defendants in an action that survives, dies, . . . the executor or administrator of the deceased may appear, or be cited to appear, as provided in section seven.” On referring to the latter section, we find no provision regulating the manner in which the representative party shall be summoned in, but we do find one referring to, and fixing the time when it may be done. If therefore, we construe the words, “as provided in section seven” as referring to the manner of citing only, they would be without meaning, and mere surplusage; — a construction which, according to well settled principles, is not permissible. They must, therefore, refer to the provision regulating the time, which thus becomes a part of section ten, and applicable to eases where there are more than one plaintiff or defendant. The result is that the administrator has until “the second term after such death, or after his appointment,” in which to make his election whether he will appear or not. If at such second term he neglects or refuses to enter an appearance, he may then be summoned in. This may, as suggested, in some cases cause serious inconvenience. But, if so, the remedy is with the legislature, and not with the court. Exceptions overruled.

Appleton, C. J., Walton, Dickerson and Barrows, JJ., concurred.