Clapp v. Balch , 3 Me. 216 ( 1824 )

Mellen C. J.

delivered the opinion of the Court, as follows.

The defendant moved the Court below to nonsuit the plaintiff, because the writ was not indorsed by any person whatever ; but the Court overruled the motion ; and we think very properly. If a writ is not indorsed before service, it may be a good objection by way of plea in abatement, or on motion ; provided such plea be filed or motion made in due season ; otherwise the objection is considered as waived. By Slat. 1821, ch. 59, sec. 8, if the person who indorsed the orignal writ is not of sufficient ability, the Court on motion may order the plaintiff to procure a new indorser ; and in failure thereof, a nonsuit shall be directed ; but that is not the present case, and of course this exception cannot be sustained. The order of Court granting leave to the plaintiff’s attorney to indorse the Writ at the time of trial is the ground of a second exception ; but as the first is overruled, this can be of no importance, because such an indorsement could by no possibility prejudice the rights of the defendant. Of course this exception must share the fate of the other. The defect in this case, arising from the want of an indorsement, as we have before intimated, should have been taken advantage of by plea in abatement or on motion; and we are disposed to consider it as a motion to abate the writ ; but in this view of the subject, we are of opinion the exception cannot prevail; the motion was too late— the general issue had been joined, and the cause was partly opened to the jury. This was a waiver of all matters of abatement, and we are bound so to consider it. The declarations of the plaintiff’s counsel that the writ was indorsed, cannot in a legal point of view vary the case. The defendant’s counsel should have examined for himself. It is a principle of law that pleas and motions in abatement should be treated with strictness. We are therefore of opinion the decision of the Court was correct in overruling the defendant’s objection ; and the cause must be permitted to proceed to trial. 4 Mass. 437, is a case in point.

We would avail ourselves of this opportunity to correct a mistaken opinion which we have had occasion to notice on the Circuit with respect to the right of the parties in a cause to file exceptions to the opinion of the Court of Common Pleas. The extent of the right seems not to have been perfectly understood. The provision contained in the fifth section of the act of 1822, ch. 193, is in these words; “ That either party aggrieved by any “ opinion, direction or judgment of said Court of Common Pleas, “ in any action originally commenced in said Court, many matter “of law, may allege exceptions to the same.” It is manifest that the legislature did not intend that every opinion of the Court of Common Pleas should be .subject to revision in this Court. The opinion, direction or judgment must be in some matter of law, involving and deciding the legal rights of one of the parties. Hence, if that Court should, contrary to law, admit or reject a witness, or written proof, or give instructions to the jury, not warranted by legal principles, — or give an incorrect opinion, decisive of the cause, one way or the other ; or deprive either party of his rights, by ordering a nonsuit in those cases where such an order would be unauthorized; or enter a default and judgment against a defendant who claimed to be heard, and opposed such default; in all these cases exceptions may be rightfully alleged ; because they are decisions in matters of law. But there are numerous questions which that Court, or a Judge of this Court, when sitting alone, has a right to decide finally ; questions not subject to the revision of this Court. Such are all questions submitted for decision to the direction of the Court. Of this character are motions for a continuance ; — for leave to amend, in cases where the proposed amendment may legally be made; — -for leave to enter actions after the usual time, — to take depositions, — for postponement of causes, &c. In these cases no exception can be alleged against the order or decision. They are not questions of law, but of expedience, and they are not settled by any fixed legal principle, but according to the circumstances of each case and the sound discretion of the Judge, fit the last term at Castine, we dismissed an action from our docket in which an exception had been alleged against the decision of the Court of Gommon Pleas, ordering the continuance of the cause. In the case before us we doubt whether the defendant’s motion for a nonsuit was proper ; — whether the Court had a right to order one ; and whether the decision, overruling the motion, furnished legal ground for an exception ; but considering the motion in nature of a motion to abate the writ for want of an original indorser, it was one which the Court might and ought to decide ; and the decision of which, if against the plaintiff and unreversed, would be fatal to the action. On this ground we think the exception was lawfully alleged ; and on this ground we sustain the action ; — but for the reasons before mentioned, we overrule the exception, and the defendant must answer over to the merits of the cause.