Turner v. Friend

59 Me. 290

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1871
• Status: Published

Opinion

Danforth, J.

Motion to abate the writ for want of service. The action is against the defendant, and the officer, by direction of the writ, has attached the property upon which the plaintiff claims, by virtue of the act of 1869, c. 36, § 3, to have a lien to secure his judgment, and gave the defendant a summons. IL S. 1857, c. 81, § 15, provides that, “ When goods or estate are attached on either of said writs, a separate summons . . . shall be delivered to the defendant,” etc. A fair construction of this language does not require that the property attached should belong to the defendant. It is sufficient if the property is such as the law makes liable to be levied upon to satisfy any judgment that may be recovered.

This brings the service in this case directly within the terms of the statute. It is not unlike the common case of a suit to enforce a mechanic’s lien, when by direction of the writ the special property upon which the lien exists is attached, though it may not belong to the defendant, and which has always been held sufficient to authorize notice by a separate summons.

But if this were not so the writ is clearly amendable as proposed in plaintiff’s motion. Matthews v. Blossom, 15 Maine, 400. Such an amendment would not even change the form of the writ: It is now a writ of attachment, and the case finds that a portion of the property attached belonged to the defendant. The insertion of the words proposed, will make the writ of the usual form, and it will then appear that the property of the defendant is attached without any change in the officer’s return. The amendment can be allowed on such terms as the presiding justice at nisi prius may deem proper. . Action to stand for trial.

AppletoN, C. J.; KeNT, WaltoN, and DiceeksoN, JJ., concurred.