Crawford v. Howard , 30 Me. 422 ( 1849 )

Wells, J.

— The second error assigned is, that the Judge of the Police Court for the city of Bangor, before whom the action against the plaintiff in error was tried, decided “ that said defendant could not inquire into the legality of the organization and proceedings of a court martial purporting to have been held upon Benjamin S. Crawford, the defendant, as captain of said company.”

It appears very clearly from the authorities cited, that where one seeks to enforce the judgment of a courb'of limited and special jurisdiction, its organization is open to inquiry, and its jurisdiction must be established.

The error assigned is admitted by the plea, and requires a reversal of the judgment.

It was decided in Nickerson v. Howard, 25 Maine, 394, that a private could not be excused from the performance of military duty, if the proceedings of a court martial, removing the captain of the company to which he belonged, were illegal and void.

The plaintiff in the present action was the captain and the party, over whom the court martial assumed to exercise jurisdiction. If the court had no jurisdiction over him, through the want of a proper organization, he could not be so far affected by its decree, as to be compelled to pay a fine for not doing duty under the ensign of the company. His commission is evidence of his right to command, and the defendant must show, that he has been lawfully deprived of his authority under it.

The tenth section of the act of March 28, 1837, c. 276, relates to actions brought to recover fines and costs imposed by courts martial, and not to those commenced to ^recover fines for non-attendance at a company training.

It is not the province of the Court, to extend this section of the statute to cases, to which by its terms, it does not apply.

We are unable to determine from what is exhibited to us whether the court martial was or was not properly organized.

It may be that the defendant in error will be able to show, that the action is maintainable.

If it had been made fully to appear, that there were objections to the action which could not be removed, then the judgment would have been reversed without further proceedings, but in the case of How v. Merrill, 5 Greenl. 318, the rule is stated to be, that where the action may be sustained and the decision of the tribunal exercising jurisdiction is erroneous, a new trial will be granted to correct the mistake and give the party aggrieved the benefit of a legal trial.

The defendant in error should have an opportunity to present his case in such manner, if he is able to do it, as will obviate the objections, which are made.

The judgment of the judge of the Police Court is reversed, and a new trial ordered at the bar of this Court.