Smith v. Davis , 38 Me. 459 ( 1853 )

Shepley, C. J.

— The statute requires, that petitions for review should be indorsed, c. 114 § 16. The eighteenth rule of the court requires that pleas in abatement should be filed within two days after entry of the action. Motions for causes presentable by plea in abatement, have been considered as subject to the same rule, the Court having regard to the substance rather than the form,, in which the objection is presented. Clapp v. Balch, 3 Greenl. 216; Trafton v. Rogers, 13 Maine, 315; Maine Bank v. Hervey, 21 Maine, 38.

Such a motion would seem to be considered in Massachusetts as made in season, if made during the first term. Carpenter v. Aldrich, 3 Met. 58. It does not appear that any rule of that court required that it should be made at an earlier time.

"When a petition for review is entered before service, the respondent must be entitled to the same opportunity after he is required to appear, as he would have in case of a precept served before entry,'but he cannot be entitled to.greater indulgence. There is a difference between the present and the former statute respecting the time when an indorsement should be made; but that affords no cause for a change or disregard of the rule respecting the time when advantage should be taken of the omission. The party is considered as having waived the privilege secured to him by the statute. Exceptions overruled.

Tenney, Wells, Howard and Rice, J. J., concurred.